Modi Spinning & Weaving Mills Co.
Ltd. & ANR Vs. Ladha Ram & Co  INSC 235 (23 September 1976)
RAY, A.N. (CJ) RAY, A.N. (CJ) BEG, M.
HAMEEDULLAH SHINGAL, P.N.
CITATION: 1977 AIR 680 1977 SCR (1) 728 1976
SCC (4) 320
CITATOR INFO :
R 1988 SC1362 (4)
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 Procedure Code (Act V of 1908)--Order VI. Rule
In a suit for decree for Rs. 1,30,000/instituted
by the respondent/plaintiff in May, 1971, the appellants/defendants 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 substituting 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
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 defendants 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]
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
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 Allahabad. 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 additional pleas. Paragraph 25 states that the agreement dated 7
April, 1967 is appli729 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 position 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 substitution 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 defendants for amendment. One of the reasons given by the trial court is
that the defendants wanted to resile from admissions made in paragraph 25 of
the written statement. The trial court said that "the repudiation of the
clear admission 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 defendants 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 defendants 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 pleadings 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
If such amendments are allowed the plaintiff
will be irretrievably 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 paragraphs 4
and l 9 730 of the written statement. These amendments were also rightly
For the forgoing reasons the appeal must
fail. The defendants, appellants cannot be allowed to amend the written
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
appellants to the respondent.
Record can be sent back to the trial court as
early as possible.
S.R. Appeal dismissed.