E. Prasad Goud Vs. B. Lakshmana Goud - Court Judgment

Excerpt:
civil - amendment of written statement - order 6 rule 17, order 8 rule 1-a and section 151 of code of civil procedure, 1908 and civil procedure code (amendment) act, 2002 - petitioner-defendant had telephonic talk with respondent-plaintiff wherein respondent admitted about involvement of third party behind filing of recovery suit against petitioner-defendant - petitioner filed two applications after filing of written statement for sustaining such tape recorded telephonic talk into evidence - said applications rejected on ground of amended provisions of order 6 rule 17 - rejection of said applications challenged - it is evident petitioner had telephonic talk with plaintiff-respondent later to filing of written statement - petitioner sought to sustain said plea in view of subsequent event - restriction imposed under amended provision of order 6 rule 17 relates to facts, events and circumstances existing either on date of filing suit or on date of filing of pleadings including written statement - court is always entitled to take note and allow any amendment in regard to any subsequent event - said telephonic talk was subsequent to filing of written statement and long after filing of suit itself - held, said provision would not apply for addition to pleadings of any new facts or material based on subsequent event. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - even the object as enunciated in the amending act, is to allow either party to alter or amend his pleadings, where it is satisfied that either new facts have come into existence subsequent to the institution of the suit.orderb. prakash rao, j.1. the defendant is the petitioner in these two revisions which are filed seeking to assail the orders in i.a. nos. 692 and 697 of 2002 in o.s. no. 227 of 2001, dated 7.11.2002 on the file of the principal senior civil judge, kurnool dismissing the applications purported to have been filed under order 6 rule 17 cpc seeking amendment of the written statement and another one under order 8 rule 1-a(3) cpc and section 151 cpc requesting leave of the court to receive the document viz., tape cassette.2. heard both sides. on a consideration, briefly, the facts of the case which emerge are that the respondents herein have filed the suit for recovery of a sum of rs. 1,62,133/- on the foot of a promissory note, dated 24.5.1999 alleged to have been executed by the petitioner-defendant for a sum of rs. one lakh repayable with interest at 24% per annum. contesting the suit claim, the case of the petitioner-defendant in the written statement filed on 1.6.2002 was that the said promissory note is a rank forgery and the same was brought out at the instance of one sri k.e. vara prasad @ tanker prasad of dhone as a result of certain existing disputes relating to money transactions between the said prasad and the sister of the defendant. thereupon the court below framed the issues on 24.6.2002. after the trial commencing on 16.9.2002, the respondent-plaintiff closed the evidence on his side on 9.10.2002 after examining two witnesses. thereafter, the matter was posted on 28.10.2002 for the evidence of the petitioner-defendant and on which day these two applications were filed. the case of the petitioner-defendant in these two applications is that subsequent to filing of the written statement, the petitioner had a telephonic talk on 25.6.2002 with the respondent-plaintiff which was tape recorded on the speaker phone wherein it was admitted by the respondent-plaintiff that the suit claim is only at the instance of said prasad and he will go by his (prasad) instructions. the said version was confronted by the petitioner to the respondent-plaintiff when he was in the witness box. however, it was denied was denied that the tape cassette was not received in evidence on the objection raised by the respondent-plaintiff on the ground that the said version is not set-forth in the written statement and being a new plea, there was no opportunity for the plaintiff to rebut. thus the cross-examination was confined to the pleas in the written statement. hence it necessitated the petitioner to file the present applications.3. contesting the applications, the case of the respondent was that he never had any talk as such with the petitioner on phone and further stating that when a suit is pending and contested, the question of having any such talk does not arise. hence neither there exist any truth in the said allegation nor the petitioner is entitled to seek any amendment of written statement to introduce plea on the said tape cassette.4. the court below after considering the submissions made on either side, dismissed the applications placing reliance on the amended provisions of order 6 rule 17 cpc on the ground that no application for amendment can be allowed after trial commences and even otherwise, the petitioner did not immediately approach the court.5. after considering the contentions advanced on either side and on a perusal of the record, it is evident that under these two applications the petitioner-defendant sought to sustain the said plea in view of the subsequent event of having a telephonic talk later to the filing of written statement in court wherein, the respondent-plaintiff has admitted about the involvement of one k.e. vara prasad behind the suit claim. therefore, he wanted to incorporate the plea in the written statement and the tape cassette into the evidence. there is no dispute about the fact that the original written statement was filed by the petitioner on 1.6.2002. according to the petitioner, the telephonic talk was on 25.6.2002. therefore, the question of its incorporation in the written statement possibly cannot arise. it is not disputed that the respondent-plaintiff during his cross-examination was confronted with the tape cassette, which on the objection raised by the respondent was rejected for want of plea in the written statement. the evidence on behalf of the defendant is not yet commenced. when the matter was posted for his evidence on 28.10.2002, subsequent to closing of plaintiff side, these applications were filed. under the amended act 22 of 2002, the proviso is added to rule 17 of order 6 cpc, which reads as follows:'17. amendment of pleadings :--the court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 6. the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. it also helps in checking the delays in filing the applications. further, once the trial commences on the known pleas, it will be very difficult for any side to reconcile. yet, under the same proviso, an exception is made where it is shown that in spite of diligence, he could not raise a plea. therefore, it is not a complete bar nor shuts out entertainment of any later application. otherwise, the proviso would be in direct conflict to the expression 'at any stage' used in the rule. even the object as enunciated in the amending act, is to allow either party to alter or amend his pleadings, where it is satisfied that either new facts have come into existence subsequent to the institution of the suit. the restriction imposed under this amended provision could at the most relate to the facts, events and circumstances which are existing or available either on the date of filing the suit or on the date of filing of the pleading i.e., written statement. it further goes in support that the court is always entitled to take note and allow any amendment in regard to any subsequent event. therefore the said provision would not apply for addition to the pleadings of any new facts or material based on a subsequent event.7. the court below, therefore, was not right in rejecting the applications holding that the bar goes against the petitioner. admittedly in this case, the telephonic talk was subsequent to the filing of written statement and long after filing of the suit itself and the petitioner has come out with the applications on the day when the matter was posted for his evidence.8. in the circumstances, the applications la. nos. 692 and 697 of 2002 in o.s. no. 227 of 2001 filed by the petitioner-defendant need to be allowed and they are accordingly allowed. the civil revision petitions are allowed and the impugned common order and decrees are set-aside. no costs.

Judgment:
ORDER

B. Prakash Rao, J.

1. The defendant is the petitioner in these two revisions which are filed seeking to assail the orders in I.A. Nos. 692 and 697 of 2002 in O.S. No. 227 of 2001, dated 7.11.2002 on the file of the Principal Senior Civil Judge, Kurnool dismissing the applications purported to have been filed under Order 6 Rule 17 CPC seeking amendment of the Written Statement and another one under Order 8 Rule 1-A(3) CPC and Section 151 CPC requesting leave of the Court to receive the document viz., tape cassette.

2. Heard both sides. On a consideration, briefly, the facts of the case which emerge are that the respondents herein have filed the suit for recovery of a sum of Rs. 1,62,133/- on the foot of a promissory note, dated 24.5.1999 alleged to have been executed by the petitioner-defendant for a sum of Rs. one lakh repayable with interest at 24% per annum. Contesting the suit claim, the case of the petitioner-defendant in the Written Statement filed on 1.6.2002 was that the said promissory note is a rank forgery and the same was brought out at the instance of one Sri K.E. Vara Prasad @ Tanker Prasad of Dhone as a result of certain existing disputes relating to money transactions between the said Prasad and the sister of the defendant. Thereupon the Court below framed the issues on 24.6.2002. After the trial commencing on 16.9.2002, the respondent-plaintiff closed the evidence on his side on 9.10.2002 after examining two witnesses. Thereafter, the matter was posted on 28.10.2002 for the evidence of the petitioner-defendant and on which day these two applications were filed. The case of the petitioner-defendant in these two applications is that subsequent to filing of the Written Statement, the petitioner had a telephonic talk on 25.6.2002 with the respondent-Plaintiff which was tape recorded on the speaker phone wherein it was admitted by the respondent-plaintiff that the suit claim is only at the instance of said Prasad and he will go by his (Prasad) instructions. The said version was confronted by the petitioner to the respondent-plaintiff when he was in the witness box. however, it was denied was denied that the tape cassette was not received in evidence on the objection raised by the respondent-plaintiff on the ground that the said version is not set-forth in the Written Statement and being a new plea, there was no opportunity for the plaintiff to rebut. Thus the cross-examination was confined to the pleas in the Written Statement. Hence it necessitated the petitioner to file the present applications.

3. Contesting the applications, the case of the respondent was that he never had any talk as such with the petitioner on phone and further stating that when a suit is pending and contested, the question of having any such talk does not arise. Hence neither there exist any truth in the said allegation nor the petitioner is entitled to seek any amendment of Written Statement to introduce plea on the said tape cassette.

4. The Court below after considering the submissions made on either side, dismissed the applications placing reliance on the amended provisions of Order 6 Rule 17 CPC on the ground that no application for amendment can be allowed after trial commences and even otherwise, the petitioner did not immediately approach the Court.

5. After considering the contentions advanced on either side and on a perusal of the record, it is evident that under these two applications the petitioner-defendant sought to sustain the said plea in view of the subsequent event of having a telephonic talk later to the filing of Written Statement in Court wherein, the respondent-Plaintiff has admitted about the involvement of one K.E. Vara Prasad behind the suit claim. Therefore, he wanted to incorporate the plea in the Written Statement and the tape cassette into the evidence. There is no dispute about the fact that the original Written Statement was filed by the petitioner on 1.6.2002. According to the petitioner, the telephonic talk was on 25.6.2002. Therefore, the question of its incorporation in the Written Statement possibly cannot arise. It is not disputed that the respondent-Plaintiff during his cross-examination was confronted with the tape cassette, which on the objection raised by the respondent was rejected for want of plea in the Written Statement. The evidence on behalf of the defendant is not yet commenced. When the matter was posted for his evidence on 28.10.2002, subsequent to closing of plaintiff side, these applications were filed. Under the amended Act 22 of 2002, the proviso is added to Rule 17 of Order 6 CPC, which reads as follows:

'17. Amendment of Pleadings :--The Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

6. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Further, once the trial commences on the known pleas, it will be very difficult for any side to reconcile. Yet, under the same proviso, an exception is made where it is shown that in spite of diligence, he could not raise a plea. Therefore, it is not a complete bar nor shuts out entertainment of any later application. Otherwise, the proviso would be in direct conflict to the expression 'at any stage' used in the Rule. Even the object as enunciated in the amending Act, is to allow either party to alter or amend his pleadings, where it is satisfied that either new facts have come into existence subsequent to the institution of the suit. The restriction imposed under this amended provision could at the most relate to the facts, events and circumstances which are existing or available either on the date of filing the suit or on the date of filing of the pleading i.e., Written Statement. It further goes in support that the Court is always entitled to take note and allow any amendment in regard to any subsequent event. Therefore the said provision would not apply for addition to the pleadings of any new facts or material based on a subsequent event.

7. The Court below, therefore, was not right in rejecting the applications holding that the bar goes against the petitioner. Admittedly in this case, the telephonic talk was subsequent to the filing of Written Statement and long after filing of the suit itself and the petitioner has come out with the applications on the day when the matter was posted for his evidence.

8. In the circumstances, the applications LA. Nos. 692 and 697 of 2002 in O.S. No. 227 of 2001 filed by the petitioner-defendant need to be allowed and they are accordingly allowed. The Civil Revision Petitions are allowed and the impugned common order and decrees are set-aside. No costs.