B.N. Chaturvedi, J.
1. In the course of proceedings before a Commissionof Inquiry where the plaintiff was appearing in hisprofessional capacity as a Senior Advocate, in hiswritten submissions in the nature of argumentsaddressed to the Commission, the defendant allegedlymade certain libellous statements, giving rise to anaction for damages. Consequently, a suit for damagesagainst the defendant was brought before this Court.Alleged defamatory statements constituting basis ofthe suit, as reproduced in the plaint read as under:
'Hence his (Plaintiffs)obsession with my sources is at theLTTE's behest. According to myinformation, Mr. Jethmalani has beenreceiving money from the LTTE beingdeposited in his son's account inCITIBANK in New York. That suchdeposits take place has been admitted byMr. Jethmalani.'
2. The defendant has by making present applicationsought to effect certain amendments in his writtenstatement. A new paragraph 5A, to the followingeffect is sought to be added;
5A: 'The alleged cause of actionhas been expunged by the Jain Commissionof Inquiry, which on 22.11.1995 hasordered as follows:
'Shri Jethmalani submitted thatduring his deposition, Dr. SubramanianSwamy has made uncalled for andunwarranted remarks against him. Evenin the written submissions submitted byDr. Subramanian Swamy after the end ofthe deposition, he has leveled falseand unwarranted remarks. All have to beexpunged and he should have beenprotected from such a conduct of thewitness which was highly reprehensibleand condemnable in respect of which notonly he but other members of the Barpresent during the proceedings had alsostrongly protested. It is true that itwas highly improper and unjustified onthe part of Dr. Subramanian Swamy topass any remarks against the counsel Sh.Jethmalani appearing on behalf of Ms.Jayalalitha. I had been taking strongexception to such remarks and had beenwarning and directing Dr. SubramanianSwamy to keep restraint and maintain thedignity of the proceedings. For acertain remark by Dr. Swamy in regardto Shri Jethmalani, everyone includingthe Commission felt hurt and Dr.Subramanian Swamy on that occasionapologised during the proceedings.However he failed to observe thatrestraint and made unwarranted remarksin his written submissions which heshould not have done. All remarksagainst Sh. Jethmalani shall standexpunged.
Expunction means that the remarkswere never made. The Commission havingexpunged them, they can no longer betreated as Part of the record of thecourt, and the same cannot be reliedupon until the order expunging theremarks, is revoked or set aside. Theeffect of the order of expunction is asif the remarks had never been made, andhence they cannot be the foundation of asuit for defamation for a statement madein the course of proceedings,particularly when it was the plaintiffhimself who moved for expunction. Inshort the effect of the expunction is tomean that the remarks have never beenmade. Thus such expunged remark cannotmake a cause of action in the instantsuit. Hence there is no cause ofaction; and the plaint must besummarily rejected'.
3. Further, necessitated by proposed 'addition ofpara 5A, a consequential amendment in para 19 of thewritten statement is also sought to be carried out;by mentioning 'in paras 4, 5, 5A, 6 of this writtenstatement', in place of 'in paras 4, 5, 6 of thiswritten statement' as occurring in that para 19.
4. Contest to the application is essentially basedon pleas; firstly, that the proposed amendment islegally impermissible as notwithstanding that the pleanow being sought to be incorporated did not form partof defendant's pleadings, the same was raised on hisbehalf in the course of hearing on is 9989 of 2000under Order 7 Rule 11 CPC, which was dismissed by thisCourt vide order dated 27th November, 2000 and aSpecial Leave Petition (Civil) No. 4948 of 2000 filedby the defendant before the Supreme Court, for settingaside the said order declining the application forrejection of plaint, on the same very grounds as urgedbefore this Court earlier, was also dismissed by theSupreme Court by an order dated 16.4.2001; secondly,that the order dated 22nd November, 1995 of the JainCommission of Inquiry came to be passed afterinstitution of the suit; thirdly, that though thedefendant filed his written statement in July, 1996 noreference to the said order dated 22nd November, 1995was made therein and that the application is whollymalafide, vexatious and aimed at protracting the trialand lastly, that in the course of admission/denial ofdocuments, the order dated 22nd November, 1995 of theJain Commission of Inquiry was denied by the defendantas 'inadmissible'.
5. Before embarking upon discussion on the instantapplication it would be worthwhile to take note ofcertain aspects emanating from the pleadings and theproceedings held heretofore. The defendant in hisdefense, as set up in the written statement, interalia, pleads that there was no publication of thealleged defamatory statements and alternatively, thathe is protected under Section 6 of the Commission ofInquiry Act. Apart from raising the plea forrejection of plaint in view of aforesaid preliminaryobjections, the defendant made an application being IANo. 9989/2000 under Order 7 Rule 11 CPC seekingrejection of plaint on the ground that the plaint doesnot disclose any 'tribal cause of action' in view ofprotection available under Section 6 of the Commissionof Inquiry Act. This application was, however,rejected by this Court vide order dated 27th November,2000 and the Special Leave Petition filed against thatorder was also dismissed by the Supreme Court by anorder dated 16th April, 2001.
6. I have heard the arguments on either side.
7. Opposing the proposed amendment much emphasiswas laid on the fact that the plea now being sought tobe canvassed by way of proposed amendment havingearlier been raised and negatived by this Court aswell as by the Supreme Court, is no longer availableto the defendant. A reference to the order dated 27thNovember, 2000 rejecting the is 9989/2000 under Order7 Rule 11 CPC, would however reveal that the merits ofsuch a plea had not been examined and decided in thatorder. On that occasion rejection of the plaint wassought on the plea that the same does not disclose any'tribal cause of action' in view of Section 6 of theCommission of Inquiry Act. Holding that facts of thegiven case did not attract application of Section 6 ofthe Commission of Inquiry Act, the plea rejectionof plaint was discarded. The Special Leave Petitionagainst the order dated 27th November, 2000 wasdismissed by the Supreme Court by a non speakingorder. Thus, even if the defendant had taken the pleain question in the course of arguments on the IA9989/2000 or in his Special Leave Petition before theSupreme Court, there is no indication that such pleawas indeed adverted to and negatived. Effect ofdismissal of the Special Leave Petition by the SupremeCourt by a non speaking order is not indicative of allthe pleas taken therein being examined and rejected.This can be better answered in the words of theSupreme Court in Uday Pratap Singh and Ors. v.State of Bihar and Ors. & D.N. Sinha and Ors. v.State of Bihar and Ors. in : 1994(4)SCALE344 :
'It is true that against earlierdecision of the High Court, a SpecialLeave Petition was rejected by thisCourt but as it was not a speakingorder, it cannot be said that this Courthad put its imprimatur on theobservations found in paragraph 14 ofthe judgment in Jha case which we havereferred to earlier. As held in thedecision of this Court in Indian OilCorporation Ltd. v. State of Bihar,when Special Leave Petition is summarilyrejected, it occasions no merger of the order of the lower Court in the order ofthe Supreme Court, and even such anorder can be challenged in the HighCourt'.
8. Moreover, prejudging merits of proposedamendment is not in keeping with the law on amendment ofpleadings. Unless it is frivolous, vexatious, malafideor in intended to overreach the Court, an amendmentwhich helps in resolving the real controversy betweenthe parties, deserves to be allowed and it is not opento decide at this stage if the person seeking theamendment will ultimately succeed in his plea or not.
9. Next argument that the order dated 22ndNovember, 1995 of Jain Commission of Inquiry came intobeing after institution of the suit is of relevance onlyin the context of plea for rejection of plaint for notdisclosing cause of action. Any subsequent eventbearing effect on the final outcome of the matter incontroversy can be sought to be incorporated in thepleadings. Thus the second plea is not a validobjection against the proposed amendment being allowed.
10. Amendment of pleadings can be sought at anystage of the proceedings. A particular plea based oncertain facts being available at the time of filing ofthe suit or written statement but not finding mention inthe pleadings, cannot constitute a good ground to refuseincorporation thereof in the pleadings at a subsequentstage unless the move in the respect sounds frivolous,vexatious or malafide. Thus even though the order dated22nd November, 1995 relating to expunction of thealleged libellous statement had come into existencebefore the defendant filed his written statement, theamendment in question cannot be disallowed on thisground alone. Of course the proposed amendment is beingcharacterised as malafide and vexatious, no materialwith reference to the record could be brought forth togarner support for such kind of argument. The recordingof evidence is already on and there has been no set-backto the progress of the trial on account of presentapplication for amendment. There is no denial that the order dated 22nd November, 1995 expunging the allegeddefamatory statement constitutes part of proceedingsheld before Jain Commission of Inquiry. The plea basedon the said order which the defendant seeks toincorporate is a legal one and no additional evidencewould appear necessary to provide sustenance to it.Thus, in the event of proposed amendment being granted,the same cannot be said to result in protracting thetrial.
11. Lastly, the fact that in the course ofadmission/denial of documents, the order dated 22ndNovember, 1995 was termed by the defendant as'inadmissible' cannot operate as a bar against seekingthe present amendment based on that order. The questionrelating to admissibility or inadmissibility of aparticular piece of evidence falls within the domain ofcourt's jurisdiction and it is wholly inconsequential asto how a party to the suit terms the same.Admission/denial of documents is simply aimed at cuttingshort the oral evidence to prove the execution andcontents of a particular document. If the defendantrefused to admit the order dated 22nd November, 1995terming the same as 'inadmissible' he cannot be pleadedto be estopped from seeking to rely upon the same forhis defense.
12. Viewed in the light of aforesaid, no ground ismade out justifying refusal for the proposed amendment.The application is thereforee granted and the proposedamendment is permitted to be incorporated in the writtenstatement.