PETITIONER:
MODI SPINNING & WEAVING MILLS CO. LTD. & ANR.
Vs.
RESPONDENT:
LADHA RAM & CO.
DATE OF JUDGMENT23/09/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1977 AIR 680 1977 SCR (1) 728
1976 SCC (4) 320
ACT
Pleadings, amendments to--Amendment to tile pleadings to
introduce an entirely different case, under the guise of
permissible inconsistent pleas which is likely to cause
prejudice to the other side cannot be allowed--Civil Proce-
dure Code (Act V of 1908)--Order VI. Rule 17.
HEADNOTE
In a suit for decree for Rs. 1,30,000/- instituted by
the respondent/plaintiff in May, 1971, the appellants/de-
fendants filed their written statement admitting that by
virtue of an agreement dated April 7, 1967, the plaintiff
worked as their Stockist-cum-Distributor. After three years
the defendants filed an interlocutory application under
Order VI, Rule 17 to amend the written statement by substi-
tuting paragraphs 25 and 26 with a new paragraph in which
they took the fresh plea that the plaintiff was a mercantile
agent-cum-purchaser. The trial court rejected the said
application and the High Court, in revision, affirmed the
judgment of the trial court.
Dismissing the appeal-by special leave the Court,
HELD: It is true that inconsistent pleas can be made in
pleadings. The defendants cannot be allowed to change
completely the case and substitute an entirely different and
new case. In the instant case, the effect of substitution
of paragraphs 25 and 26 is not making inconsistent and
alternative pleadings. but it is seeking to displace the
plaintiff completely from the admissions made by the defend-
ants in the written statement. If such amendments are
allowed, the plaintiff will be irretrievably prejudiced by
being denied the opportunity of extracting the admission
from the defendants. [729 G]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 190 of.1976.
Appeal by special leave from the judgment and order
dated 8-8-1975 of the Allahabad High Court in Civil Revision
No. 1004/74.
S.C. Manchanda and M.L. Jain, for the appellants.
O.P. Malhotra, N.S. Das Bahl, Y.P. Chadha and Sat Pal, for
the respondent.
The Judgment of the Court was delivered by
RAY, C.J. This appeal is by Special Leave from the
judgment dated 8 August, 1975 of the High Court of Allaha-
bad. The appellants are defendants and the respondent is
the plaintiff in suit out of which this appeal arises.
The plaintiff’s suit is for a decree for Rs. 1,30,000/-
on the cause of action as laid in the plaint.
The suit was instituted sometime in the month of May, 1971.
The defendants filed written statement.
Two paragraphs of the written statement contained addi-
tional pleas. Paragraph 25 states that the agreement dated 7
April, 1967 is appli-
729
cable to the transactions in which the plaintiff works as
stockist-cumdistributor of the defendants. The defendants
further allege in paragraph 25 that the agreement is not
applicable to transactions in which the plaintiff acts as a
principal, In paragraph 26 the defendants/appellants in the
alternative allege that even if agreement dated 7 April,
1967 is applied to the dealings in suit, plaintiff’s posi-
tion is merely that of an agent of the defendants and as
such plaintiff is not entitled to claim any damages from the
defendants for non-supply of its own goods for sale through
the plaintiff.
The defendants/appellants approximately 3 years after
the filing of the written statement made an application for
amendment of the written statement. The proposed amendments
were for deletion of paragraphs 25 and 26 and for substitu-
tion of two new paragraph 25 and 26. The proposed amendment
in para 25 was that by virtue of the agreement the plaintiff
was appointed a mercantile agent and the plaintiff acted in
that capacity in placing orders on the defendants. The
defendants further denied the allegation of the plaintiff
that the plaintiff placed orders with the defendants in the
plaintiff’s capacity as a purchaser. The defendants also
alleged that the plaintiff throughout acted as an agent of
the defendants. In paragraph 26 of the proposed amendment
it was alleged by the defendants that being a mercantile
agent and an agent of the defendants in accordance with the
terms of the agreement, the plaintiff has no locus standi to
file the suit.
The trial court rejected the application of the defend-
ants for amendment. One of the reasons given by the trial
court is that the defendants wanted to resile from admis-
sions made in paragraph 25 of the written statement. The
trial court said that "the repudiation of the clear admis-
sion is motivated to deprive the plaintiff of the valuable
right accrued to him and it is against law." The trial
court held the application for amendment to be not bonafide.
The High Court on revision affirmed the judgment of the
trial court and said that by means of amendment the defend-
ants wanted to introduce an entirely different case and if
such amendments were permitted it would prejudice the other
side.
The decision of the trial court is correct. The defend-
ants cannot be allowed to change completely the case made in
paragraphs 25 and 26 of the written statement and substitute
an entirely different and new case.
It is true that inconsistent pleas can be made in plead-
ings but the effect of substitution of paragraphs 25 and 26
is not making inconsistent and alternative pleadings but it
is seeking to displace the plaintiff completely from the
admissions made by the defendants in the written statement.
If such amendments are allowed the plaintiff will be irre-
trievably prejudiced by being denied the opportunity of
extracting the admission from the defendants. The High
Court rightly rejected the application for amendment and
agreed with the trial court.
We are told that the defendants proposed amendments to
two other paragraphs of written statement. These are para-
graphs 4 and l 9
730
of the written statement. These amendments were also
rightly rejected.
For the forgoing reasons the appeal must fail. The
defendants, appellants cannot be allowed to amend the writ-
ten statement in the manner suggested.
The two alternative pleas of the defendants as alleged
in paragraphs 25 and 26 of the written statement are there.
The parties will be able to make their rival contentions on
the pleadings as to the issues to be raised. The defendants
wish to raise issues on those paragraph 25 and 26. Counsel
for the plaintiff states that it is open to the defendants
to apply for the framing of the issues. They will be at
liberty to do so.
The costs of this appeal will be paid by the appel-
lants to the respondent.
Record can be sent back to the trial court as early as
possible.
S.R. Appeal
dismissed.
731