Sabyasachi Bhattacharyya DECISION
Sabyasachi Bhattacharyya, J.
1. The present revisional application is directed at the instance of the defendant in a suit, primarily challenging a transfer deed, against an order, whereby an application filed by the plaintiff/opposite party No. 1 for amendment of plaint was allowed.
2. Service on the opposite party No. 2 is dispensed with.
3. Learned senior counsel appearing for the petitioner argues that, after the defendant/petitioner disclosed its defence by way of filing an application under Order XXVI Rule 10 of the Code of Civil Procedure for appointment of an expert to ascertain the veracity of the signature of the plaintiff/opposite party No. 1 in the impugned document and filed written objection to the injunction application of the plaintiff, the plaintiff opposite party No. 1 took out the amendment application to displace the case of the defendant/petitioner.
4. By placing reliance on the original plaint, as it stood before amendment, learned senior counsel argues that the original pleadings were all of the tenor that the signature appearing in the impugned deed of 2010 was not the signature of the plaintiff at all and that the plaintiff never received any consideration money from the defendants.
5. By placing reliance on several paragraphs of the plaint, as those stood before amendment, in particular paragraph Nos. 8, 9 and 12(d), it is submitted that the categorical stand of the plaintiff initially was that the left thumb impression and the signature on the document-in-question did not belong to the plaintiff.
6. However, by virtue of the amendment, the plaintiff now sought to introduce pleadings to the effect that the signatures might have belonged to the plaintiff but obtained under the influence of drugs/substance abuse, at the instance of the defendants, in particular the defendant No. 2.
7. It is submitted that such a stand is diametrically opposite to the original plaint and cannot be permitted to be introduced by way of amendment, thereby taking the defendant/petitioner by surprise.
8. It is further submitted that the plaintiff, by way of the said amendment, also sought to delete certain paragraphs of the plaint, thereby obliterating the original plaint case, to the extent that the signature and the left thumb impression-in-question did not belong to the plaintiff, to bolster the amendments now sought.
9. It is further argued that, despite the introduction of the amendments-in-question, prayers (d) and (e) of the plaint still remain in the plaint, thereby putting forth a contradictory plaint case as to the signatures being of the plaintiff, but under influence of drugs on the one hand and, on the other, that the plaintiff never signed nor executed the document-in-question at all.
10. Learned senior counsel for the petitioner argues that such a sea change in the cause of action of the plaintiff by way of amendment is not permitted in law and as such, the trial court acted without jurisdiction in allowing the amendment application.
11. In support of his submissions, learned counsel for the petitioner cites a judgment reported at MANU/SC/0284/1964 : AIR 1965 SC 1008 (Municipal Corporation of Greater Bombay Vs. Lala Pancham and Others), primarily for the proposition that if certain particulars of fraud were not there in the original pleadings, those could not be introduced by way of amendment to fill up the lacunae in the plaint.
12. Learned senior counsel also places reliance on a judgment reported at MANU/SC/0519/1994 : (1994) 6 Supreme Court Cases 117 (Bijendra Nath Srivastava (Dead) Through Lrs. Vs. Mayank Srivastava and Others), in support of the proposition that, by amendment, misconduct of a different nature than that pleaded originally could not be permitted to be introduced in pleadings.
13. In controverting such arguments, learned counsel for the plaintiff/opposite party No. 1 submits that, at the juncture when the amendment application was filed, the defendant/petitioner had not filed its written statement. No issues have even been framed as yet.
14. As such, it is argued that the contention of the petitioner, that the defendant/petitioner would be displaced from his defence case by the amendment, is fallacious.
15. It is further argued that the merits of the amendment can only be gone into at the final hearing of the suit and the proposed amendment would not change the nature and character of the suit. The premise of the suit remains that the document-in-question was obtained by fraud and the amendments were only to furnish more particulars to the original pleadings.
16. It is also argued that the pleadings as regards signature and left thumb impression were not the only ones sought to be introduced by amendment, but better particulars as regards the non-receipt of consideration by the plaintiff were also incorporated by the amendment.
17. Learned counsel for the opposite party No. 1 argues that it was the right of the plaintiff to argue its case in all details and the plaintiff could not be precluded from bringing in all relevant averments, that too at an initial stage of the suit, when the issues had not yet been framed.
18. A mere perusal of the plaint reveals that the plinth of the same was the categorical denial by the plaintiff of having signed or put his left thumb impression on the document-in-question. It was repeated in several paragraphs of the original plaint that the said signature and left thumb impression were "something unthinkable" and did not belong to the plaintiff. Even the reliance on prayers (d) and (e) of the plaint, which still remain intact, as argued by the petitioner, show that the plaint case is based on the averment that the plaintiff never executed the document-in-question at all.
19. However, the premise of the amendment application is diametrically opposite to the said initial stand of the plaintiff. What the plaintiff now seeks to introduce is that the signatures might have been of the plaintiff, but obtained under suspicious circumstances. The plaintiff even seeks to delete the relevant paragraphs where the plaintiff directly denied that the signature and left thumb impression were of the plaintiff, thereby withdrawing the admissions initially made in the plaint.
20. It is quite well-settled now that courts are stricter in allowing amendments of plaint than those of written statements. The attempt of the plaintiff to alter the nature and character of the cause of action by way of amendment cannot be permitted, contrary to the lenient view in similar cases in respect of written statements.
21. As far as the cited judgments are concerned, the judgment reported at MANU/SC/0284/1964 : AIR 1965 SC 1008, although contains an undisputed proposition of law, the same is not directly relevant to the present case, since apparently in the said case, there were no pleadings or particulars in support of the allegation of fraud at the inception and such particulars were sought to be introduced subsequently, which was refused by the Supreme Court.
22. In the present case, the plaintiff had furnished certain particulars in his own way in his original pleadings, but sought to alter such particulars beyond recognition by amendment, by introducing an entirely new cause of action.
23. The ratio laid down in Bijendra Nath Srivastava (supra), however, is squarely applicable in the present case as, similar to the said case, in the present lis also the plaintiff sought to introduce by amendment certain allegations of fraud which were entirely different and, in fact, diametrically opposite, to the initial allegations of fraud. As such, although the expression "fraud" could be said to have been retained, the nature of fraud and particulars, as contemplated in Order VI Rule 4 of the Code of Civil Procedure, were altered in such a way that the amended pleadings and the original plaint would be mutually exclusive.
24. The arguments as regards no written statement having been filed as yet and no issues having been framed, do not hold ground since, despite not having filed its written statement, the petitioner sufficiently disclosed its defence by way of filing the application under Order XXVI Rule 10 of the Code and a written objection to the injunction application of the plaintiff, which would be entirely displaced by the amendment.
25. The argument, that details regarding consideration were furnished for the first time by way of amendment, is also belied on a mere perusal of the original plaint. At several places of the original plaint, in particular paragraph No. 8, the receipt of consideration money was clearly denied by the plaintiff.
26. As such, nothing new was sought to be introduced by amendment, as regards alleged non-receipt of consideration.
27. The last argument of the opposite party No. 1, being that amendment was a right of the plaintiff in so far as introduction of complete pleadings was concerned, cannot also be accepted, since such right is not unfettered. It is well-settled by judicial decisions that amendments which are mala fide in nature and/or amount to withdrawal of admissions or introduce entirely new causes of action ought not to be permitted, particularly in respect of plaints.
28. Hence, the court below acted palpably without jurisdiction in allowing the amendment of the plaint.
29. Accordingly, C.O. No. 1757 of 2019 is allowed, thereby setting aside the impugned order and directing the amended plaint to be taken off the record. The trial court shall now proceed on the plaint as it originally stood prior to amendment and make endeavour to dispose of the suit and connected applications as expeditiously as the business of the said court permits.
30. There will be no order as to costs.
31. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
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