REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.3845 OF 2008

The State of Bihar & Ors. ….Appellant(s)

VERSUS

Modern Tent House & Anr.        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed by the defendants against

the  final  judgment  and  order  dated  17.04.2006

passed by the High Court of Patna in C.R. No. 1249

of 2005 whereby the High Court disposed of the civil

revision filed by the appellants herein while giving

them liberty to raise such question in appeal in case

the decision of the Trial Court goes against them.

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2) Facts  of  the  case  need  not  be  mentioned  in

detail except to the extent necessary for the disposal

of this appeal.

3) The respondents (plaintiffs) have filed a money

suit  (Suit  No.28  of  2002)  in  the  Court  of

sub-Judge-1  Chhabra  against  the  appellants

(defendants)  for  recovery  of  Rs.41,59,418/-.  The

appellants filed their written statement and denied

therein the respondents' claim by joining issues on

facts. Issues have accordingly been framed on the

basis of the pleadings. It appears that the evidence

of  respondents  (plaintiffs)  is  over  and  that  of  the

appellants (defendants) remains.  

4) The  appellants  filed  an  application  under

Order 6 Rule 17 of the Code of Civil Procedure 1908

(hereinafter  referred  as  “the  Code”)  seeking

amendment  in  their  written  statement  by  adding

two  Paragraphs  in  their  written  statement.  The

respondents (plaintiffs) opposed the application.

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5) The Trial Court dismissed the application and

the High Court in revision filed by the appellants

upheld  the  dismissal  giving  rise  to  filing  of  this

appeal by the defendants.

6) The short question involved in this appeal is

whether  the  two  Courts  below  were  justified  in

rejecting the appellants’ (defendants) application for

amendment sought in their written statement under

Order 6 Rule 17 of the Code?  

7) It is not in dispute that the suit filed by the

respondents  against  the  appellants  out  of  which

this appeal arises is still pending. It is also not in

dispute that the evidence of the parties is not yet

over. In other words, the trial in the suit is going on.

8) We have perused the amendment application

filed  by  the  appellants.  We  find  that  firstly,  the

proposed amendment is on facts and the appellants

in substance seek to elaborate the facts originally

pleaded in the written statement; secondly and in

other words, it is in the nature of amplification of

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the  defense  already  taken;  thirdly,  it  does  not

introduce any new defense compared to what has

originally  been  pleaded  in  the  written  statement;

fourthly,  if  allowed,  it  would  neither  result  in

changing the defense already taken nor will result

in withdrawing any kind of admission, if  made in

the written statement;  fifthly, there is no prejudice

to  the  plaintiffs,  if  such  amendment  is  allowed

because notwithstanding  the  defense  or/and  the

proposed  amendment,  the  initial  burden  to  prove

the case continues to remain on the plaintiffs; and

lastly, since the trial is not yet completed, it is in the

interest of justice that the proposed amendment of

the  defendants  should  have  been  allowed  by  the

Courts below rather than to allow the defendants to

raise such plea at the appellate stage, if occasion so

arises.

9) In  view  of  foregoing  discussion,  the  appeal

succeeds and is allowed. The impugned order is set

aside. The application (M.A. No.28 of 2002)  dated

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07.04.2005(Annexure  P-4)  filed  by  the  appellants

under Order 6 Rule 17 of  the Code is allowed. The

appellants  (defendants)  are  permitted  to  amend

their  written  statement  and  incorporate  the

amendment as prayed in their application.  

10) The respondents (plaintiffs) are also given an

opportunity to amend their plaint and adduce any

further evidence, if they so desire before defendants

are called upon to adduce their evidence.  

11) Since the suit is quite old, we direct the Trial

Court  to  ensure  its  expeditious  disposal  in

accordance  with  law  preferably  within  6  months

from  the  date  of  parties  appearance.  Parties  to

appear before the Trial Court on 04.09.2017.

               ………...................................J.  [R.K. AGRAWAL]     

                                                               …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; August 16, 2017  

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