Bhuramal Agarwala vs Samla Dalurband Coal Pvt. Ltd.

Sankar Prasad Mitra, C.J.—This is an appeal against the judgment of S.C. Ghose J. dated November 23, 1971, refusing an amendment to a written statement. The suit was filed on May 31, 1962, against three Defendants. The Defendant No. 2 is stated to be the son of the Defendant No. 1. This was a suit for recovery of various sums of money alleged to be due as damages for wrongful breach of duty or trust on the part of the Defendants Nos. 1 and 2 '' and fraudulent and wilful default caused by them to the Plaintiff in respect of various goods and chattels belonging to the Plaintiff.

In para. 2 of the plaint, it is alleged--

the Plaintiff''s assets comprise, inter alia, of coal mines properties known as Samla Dalurband Colliery together with all the buildings, plants, machinery etc. pertaining to or belonging to the said properties.

This plaint, as we have said, was filed on May 31, 1962.

On September 25, 1962, the Defendant No. 1 filed his written statement. In para. 4 of the written statement the Defendant No. 1 says--the allegation in paragraph 2 of the plaint is substantially correct. In other words, the Defendant No. 1 admits that the Plaintiff''s assets comprise, inter alia, of the properties mentioned in para. 2 of the plaint. On the same day, that is, on September 25, 1962, the Defendant No. 2 also filed his written statement admitting that the Plaintiff''s assets comprise of properties mentioned above. The Defendant No. 3 also filed a similar written statement on December 13, 1962.

More than eight years later on November 24, 1970, the Defendant No. 1 took out a Master''s summons asking for amendments to his written statement. The amendments proposed related to para. 4 of the original written statement of the Defendant No. 1 in which the Defendant No. 1 had admitted what the Plaintiff''s assets comprised of. The amendments asked for, referred to various documents stated to have been executed from time to time and the purpose of the amendments is to establish that the Plaintiff had no title to the assets which the Plaintiff had claimed. It is this application for amendment which Ghose J. had disallowed.

The legal proposition involved appears to be well-settled. Leave to amend a written statement should not be granted, if the amendment would convert the defence into another of a different and inconsistent character. As in the case of a plaint, so in the case of a written statement, the Court will not allow an amendment that would involve ''a complete change of front in the defence''. (Vide Mulla''s Code of Civil Procedure, (13th ed., pp. 732 and 734 to 735).

There have been numerous decisions in support of the above proposition. We would cite, however, just a few of them as we intend in the instant case to follow these principles.

In Laird v. Briggs (1880) 16 Ch.D. 68 the Plaintiff claimed to be a tenant in possession of a part of the foreshore of the sea at Margate and he sought to restrain the Defendant from removing shingle from the foreshore and from placing a bathing machine upon it. The Defendant claimed by forty year''s enjoyment an easement entitling him to do the acts complained of and by his statement of defence he denied that the Plaintiff was or ever had been in possession of the foreshore in question, ''save subject to the rights of the Defendant''. At the trial the Defendant asked for leave to amend his statement of defence by striking out the qualifying words, making the denial of the Plaintiff''s possession an absolute one and claiming the ownership of the foreshore. Fry J. held that the Defendant could not be allowed thus completely to change his case. This judgment was relied on by a Division Bench of our Court in Saradindu Mukherjee Vs. Jahar Lall Agarwalla, . Mr. R.C. Deb appearing for the Appellant has submitted to us that the amendment was disallowed in Laird''s case (1880-81) 16 Ch.D. 68 because the admission as to possession was sought to be denied. In the instant case, no such point is involved. To us, it seems, the principle on which the amendment was disallowed is important and that principle is that a Defendant should not be allowed completely to change his case.

The next case we intend to refer to is the case of Clerk v. Wray (1886) 31 Ch.D. 68. In an action for specific performance of an agreement to grant the Plaintiff, who was in possession, a lease of a brickfield, the Defendant delivered a defence admitting the agreement and expressing his readiness to perform it, he also counter-claimed for sums alleged to be due for rent under the agreement and labour and materials supplied to the Plaintiff in connection with the property. Three months after joinder of issue and after notice of trial, the Defendant applied by summons under Rules of the Supreme Court, 1883, Order XVIII, Rule 2, for leave to amend his defence and counterclaim and to join therewith a claim for the recovery of the land. The summons was dismissed on the grounds of (i) new case and (ii) delay. Bacon V.C. said Supra(71):

Then some months afterwards, when the action had been set down for trial, it occurs to the Defendant that he should like at present a totally distinct, new and inconsistent case. In my opinion, the practice upon this subject is clear; the rule is clear that unless the Court thinks it reasonable no such leave as is here asked for ought to be given. I think, it is in the highest degree unreasonable, having regard not only to the issues between the parties, but also to the length of time that has elapsed, that this application should be granted. In my opinion, the chief clerk was perfectly right in refusing this application. The summons must be dismissed with costs.

Uptil now, as we are aware, the principles enunciated in these old English cases remain unaltered. A Defendant cannot by an amendment be allowed to have a complete change of front in his defence Ghose J. has justifiably relied on the Madras High Court''s judgment in Shaik Masthan Sahib Vs. Palayani Balarami Reddi, . The Madras High Court has clearly laid down that an amendment in direct negation of an admission contained in the original written statement cannot be allowed.

The other point we intend to refer to is that leave to amend is invariably refused when the Court is satisfied that the application for amendment has not been made in good faith (vide Mulla''s Code of Civil Procedure, 13th ed., p. 735). In the instant case, we have already pointed out that there has been inordinate delay in making the application for amendment. The original written statement of the Defendant No. 1 was filed on September 25, 1962 and the application for amendment was made on November 24, 1970. Secondly, the affidavit in support of the Master''s Summons for amendment has been affirmed on November 18, 1970, not by the Defendant No. 1 Bhuramal Agarwalla, but by his constituted Attorney Bajranlal Agarwalla. The explanation for the delay which the constituted Attorney has given in para. 7 of his affidavit is that on or about September 19, 1970, the Defendant No. 1 was asked by counsel to make enquiries as to how the Plaintiff became the owner of the said colliery as claimed in para. 2 of the plaint and upon enquiries and searches being made the deponent (i.e., the constituted Attorney) and the Defendant No. 1 found out certain deeds and documents from which the deponent came to know certain facts.

In the affidavit-in-opposition to the application for amendment affirmed by Parameswar Kumar Agarwalla on January 7, 1971, in para. 3 the fact that the Master''s Summons has been supported by the affidavit not of the Defendant No. 1 but of his constituted Attorney has been commented upon.

That is why the affidavit-in-reply has been affirmed by the Defendant No. 1 himself on February 3, 1971. It is indeed strange that in para. 4 of this affidavit-in-reply the case made by the constituted Attorney in para. 7 of his earlier affidavit of November 18, 1970, has not been adhered to. In para. 4 of the affidavit-in-reply Bhuramal Agarwalla, the Defendant No. 1, says:

I say that the legal position was not known to me till September 1970 and the admission in the written statement was made under misconception of law.

In para. 12 of this affidavit-in-reply he has said:

I reiterate that I was not aware of the legal position prior to September 1970 when the point was raised by counsel at the conference and the documents were examined.

It is obvious that there are inconsistencies between the affidavit of the constituted Attorney and the affidavit of the Defendant No. 1. The constituted Attorney''s case is, certain deeds and documents were discovered upon searches and enquiries made on the advice of counsel. The case of the Defendant No. 1 seems to be that the point was raised by counsel at the conference and documents were examined whereupon the application for amendment had to be made. Nothing is stated about searches and enquiries after the advice of counsel was received and where and how these searches and enquiries were conducted. On these facts, it does not appear to us that the application has been made in good faith.

For all the reasons aforesaid we are of the opinion that the learned trial Judge was right in refusing to allow the amendment. The appeal, therefore, is dismissed with costs.

S.K. Datta, J.

I agree.