FUL MOHAMMAD Vs. LEYAKAT MIAN

JUDGEMENT

(1.) The instant civil misc. petition has been filed under Article 227 of the Constitution of India for quashing the order dtd. 22/2/2022 passed by the Civil Judge (Junior Division)-I, Daltonganj at Palamau in Title Suit No. 67 of 1997 whereby and whereunder, the petition for amendment in the written statement filed by the petitioner/ defendant has been rejected.

(2.) The main plea of the petitioner is that the amendment petition was filed by the petitioner on 20/11/2015 after the amendment of plaint of the plaintiff was allowed. Learned Court below without hearing the defendant has passed the impugned order.

(3.) The learned Court below, has stated in the impugned order that sufficient opportunity was granted to the defendant for hearing on his petition. While passing an order of amendment of written statement the principles need to be kept in mind which has been laid down by the Apex Court in 2022 SCC On Line SC 1128 Life Insurance Corporation Ltd Vs Sanjeev Builders Pvt Ltd wherein it has been held 25. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.