B.K. Narayana Pillai v Parameswaran Pillai (2000)

This is the case to cite when the pleading to be amended is the written statement and not the plaint. It states in terms that the courts are more generous in allowing amendment of a written statement, because the question of prejudice is less likely to arise; and it recognises the defendant's right to take an alternative plea in defence.

It is also the tidiest single statement in the syllabus of the whole set of principles governing amendment, gathered from the earlier authorities, and is worth learning as a checklist.

The respondent-plaintiff sued for mandatory and prohibitory injunctions seeking to evict the appellant-defendant, alleging that the defendant was a licensee. In his written statement the defendant pleaded that he was not a licensee but a lessee.

During the trial the defendant applied to amend the written statement to add, in the alternative, that if the court found him to be a licensee he was still not liable to be evicted because the licence was irrevocable; specifically, that having acted on the licence he had executed works of a permanent nature and incurred expenses in doing so, so that the licence could not be revoked by the grantor by force of s. 60(b) of the Indian Easements Act 1882. He also wished to plead that the first and second prayers in the plaint were barred by limitation.

Both the trial court and the High Court rejected the application on the ground that the proposed amendment was mutually destructive and, if allowed, would permit the defendant to withdraw an admission made in the main written statement.

May a defendant amend his written statement to add an alternative plea which assumes, for the sake of argument, the very case he has denied?

Yes. The appeals were allowed and the orders below set aside. The defendant was permitted to amend the written statement to the extent of incorporating the plea of entitlement to the benefit of s. 60(b) of the Easements Act, subject to payment of all arrears of licence fee and costs assessed at Rs 3,000 within one month of the parties' appearance in the trial court, the payment and receipt being without prejudice to the rights of the parties.

The judgment first restates the object of Order VI Rule 17 — to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power is wide and may be exercised at any stage of the proceedings in the interests of justice. Amendment cannot be claimed as a matter of right in all circumstances; but courts deciding such prayers should not adopt a hypertechnical approach, and a liberal approach should be the general rule, particularly where the other side can be compensated in costs. Technicalities of law should not hamper courts in the administration of justice, and amendments are allowed to avoid uncalled-for multiplicity of litigation.

It then gathers the rules from the earlier decisions:

- From A.K. Gupta and Sons Ltd. v Damodar Valley Corporation (1967): the general rule is that a party may not by amendment set up a new case or new cause of action, particularly where a suit on it would be barred; but where the amendment amounts to no more than a different or additional approach to the same facts, it will be allowed even after the statutory period has expired. The reasons are that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes, and that a party is not strictly entitled to rely on the statute of limitation where what is brought in by the amendment is in substance already in the pleading sought to be amended. - From the same case, the working definition of a cause of action for this purpose: a new claim made on a new basis constituted by new facts; the words new case meaning a new set of ideas; and no amendment being allowed to introduce a new set of ideas to the prejudice of a right acquired by lapse of time. - From Ganga Bai v Vijay Kumar (1974): the power to allow an amendment is undoubtedly wide and may be exercised at any stage in the interest of justice, the law of limitation notwithstanding; but such far-reaching discretionary powers are governed by judicial considerations, and the wider the discretion, the greater the care and circumspection required. - From Ganesh Trading Co. v Moji Ram (1978): amendment provisions are intended for promoting the ends of justice and not for defeating them, and the error is not incapable of being rectified so long as remedial steps do not unjustifiably injure accrued rights.

The principles applicable to the amendment of a plaint apply equally to a written statement, with these additions and limits:

1. Courts are more generous with a written statement, because prejudice is less likely. 2. A defendant has a right to take an alternative plea in defence. 3. The exception: the other side must not be subjected to injustice, and any admission made in favour of the plaintiff must not be withdrawn. 4. All amendments necessary for determining the real controversies are to be allowed, provided the amendment does not alter or substitute a new cause of action on which the original suit was founded or the defence taken. 5. Inconsistent and contradictory allegations in negation of the admitted position of facts, or mutually destructive allegations of fact, are not to be allowed in by amendment. 6. The amendment must not cause prejudice to the other side which cannot be compensated by costs, and none is to be allowed which defeats a legal right accruing to the opposite party by lapse of time. 7. Delay in applying is to be compensated by costs; an error or mistake which is not fraudulent should not be a ground for rejecting an application to amend a plaint or a written statement.

The plea sought to be raised was neither inconsistent with nor repugnant to the defence already taken. It was in fact an extension of the plaintiff's own case and a rebuttal to the issue framed about the defendant's liability to be dispossessed if he were proved to be a licensee. The mere fact that the application came after a prolonged delay was not a ground for rejection where the plaintiff could be compensated in costs. The court disagreed with the High Court that the amendment amounted to the withdrawal of an admission likely to cause irretrievable prejudice.

Where the pleading is a written statement, open with the proposition that the same principles apply but that the court is more generous, and that the defendant may plead in the alternative. Then use the numbered list above as the framework of the answer, applying each limb to the facts.

Note also what the court did about conduct: it allowed the amendment but on terms, requiring payment of the arrears of licence fee and costs. That is the practical answer to an examiner's fact pattern in which the applicant has behaved badly but the amendment is otherwise proper.

There is a real difference between an alternative plea and a mutually destructive one. Saying I am a lessee; but if I am a licensee, my licence is irrevocable is alternative pleading and is permitted. Saying I never occupied the premises; and my occupation was as a lessee is mutually destructive, and is not. Both courts below treated the first as if it were the second.