JUDGMENT
V.B. Bansal, J.
(1) This order will dispose of four I.As., viz. IAs.9743. 9744, 11193 & 11194/92. moved by the defendants 1 & 2 under Order6, Rule 17, read with Section 151 CPC.
(2) By way of Ia 9743/92 a prayer has been made for amendment of the written statement while Ia 9744/92 is for amendment of the reply to the application under Order 39, Rules 1 & 2 and Section 151 of the CPC.By way of Ia 111 93/92 defendants 1&2 have prayed for amendment of IA 9744/92 while Ia 11194/92 seeks amendment of Ia 9743/92.
(3) Mr. Ashok K. Ghosh, plaintiff filed a suit for declaration and permanent injunction against three defendants defendant No. 1 is Rotary International District 3010 while Defendant No. 2 is Mr. J.R. Jindal,District Governor, Rotary International. Defendant No. 3 is Mr. Deepak Kapoor who is stated to have been elected to the post of District Governor of District 3010 on 9.2.1992, which election has been challenged in this Suit.The plaintiff has claimed the following reliefs in the Suit :- 1sl
1.To declare the election of defendant No. 3 to the office/post of District Governor of District 301 Oof defendant No. 1 held on 9.2.92 as void, illegal and inoperative ; and
2.To pass a decree of permanent injunction restraining defendantNo. 3 from acting as District Governor of Rotary District 3010of Rotary International for the Rotary year 1993-94 in pursuance of election held on 9.2.1992.
(4) This Suit came up for hearing on 25.5.1992 when summons in the suit and notice of the application for injunction, viz. Ia 8718/92 were issued for 8.7.1992. The case came up for hearing on 8.7.92 and was adjourned to 24.7.92 to enable the plaintiff to file replication and rejoinder.It may be noted that the written statement and reply were filed by defendants 1 & 2 on 7.7.92. Before the case could be taken up on 24.7.92 IAs.9743 & 9744/92 were filed by defendants 1 & 2 on 20.7.92. These applications have been opposed by the learned Counsel for the plaintiff, who has inter alia pleaded that the applications for amendment have been moved with an ulterior motive to cause prejudice to the plaintiff and to prolong the determination of the matter, which is of utmost urgency. It has further been pleaded that the application seeking amendment contained evasivedenial, which is barred by Order 8, Rule 4 Civil Procedure Code and that the defendants have chosen to incorporate evidence in contravention of the provisions under Order 6, Rule 2 and on this ground alone the applications are liable to be dismissed.
(5) The plea taken up by the defendants 1 & 2 had been that the amendments sought are by way of further elucidation of pleas already taken,besides taking a new plea with regard to the Suit being barred by principles of acquisence. waiver and estoppel. It has also been pleaded that no new facts are being pleaded by way of amendment and the application has been moved at the earliest.
(6) I have heard the learned Counsel for the plaintiff and defendants1 & 2. I have also carefully gone through the pleadings as also the documents. As already referred to, the defendants 1 & 2 have filed their written statement as also the reply to the application for injunction before the date fixed in the Suit. Replication and rejoinder have not been filed as vet by the plaintiff and, thus, there has not been any delay in moving the application.
(7) It would at this stage be appropriate to refer to various facts which have to be kept in view while deciding applications for amendment of the pleadings. They may conveniently be formulated as under ;-
1.Has there been a delay in moving the application for a mendment?
2.Whether the proposed amendment would be barred by limitation ?
3.Whether the proposed amendment would be necessary for just decision of the case ?
4.Whether the application for amendment has been moved with a view to delay the proceedings ?
5.Whether the opposite party has been taken by surprise ?
6.Whether the proposed amendment would set up a new case 7
7.Whether the amendments could be allowed without injustice to the opposite party ? 8.Procedural law is intended to facilitate and not to obstruct the course of substantive justice.
9.Whether the opposite party would be aware of the controversy so as to enable the Court to determine the real issues between the parties.
(8) Keeping in view these facts it would now be appropriate to consider the proposed amendments. It is not disputed that the amendments proposed in the reply to the application under Order 39, Rules 1 & 2 and Section 151 Civil Procedure Code are similar to the amendments proposed in the written statement of defendants 1 & 2.
(9) By way of the proposed amendments defendants 1 & 2 have prayed for permission to add preliminary objection No. 12 to make addition in para 12 and to add para No. 13 as preliminary objection. Submissions of learned Counsel for the plaintiff had been that the proposed amendment would introduce a totally new case which is not permissible and the defendants are estopped from pleading facts in contravention of the averments made earlier. I have gone through the earlier averments and ft cannot be said that defendants 1 & 2 are taking absolutely new facts. The law is well-settled that the principles governing the amendment of plaint and that of written statement are not the same. The plaintiff cannot be permitted to substitute new cause of action. However, adding a new ground of defense or substituting or altering another would stand on different footing.Courts are inclined to be more liberal in allowing amendment and questions of prejudice are less likely to operate in case of amendment of the written statement than in the case of amendment of the plaint. However, there is always a legal prejudice when irrelevant matters are allowed to be introduced by way of amendments. In the instant case the defendants 1 & 2are only elaborating the facts and it cannot be said that they are setting upa new defense or taking up contradictory pleas.
(10) With regard to the proposed amendments in parasl3 and 15A & B the objection taken by the plaintiff is that these amendments are of like nature and only require interpretation of the rules and bye-laws of the Rotary International. It has also been pleaded that there was no complaint about Mr. Rajesh Kumar campaigning for the plaintiff and the answering defendant is making attempts to perjure himself and so theamendment should not be allowed. It is, thus, clear that it cannot be said that the proposed amendment would not be necessary or relevant for just decision of the case. There can, thus possibly be no valid objection to the proposed amendment which is sought at the earliest opportunity.
(11) The question as to whether the plea taken up by the defendants about the complaint made to the effect that Mr. Rajesh Kumar was canvassing for the plaintiff also is to be believed or not is a question which will have to be gone into during trial.
(12) With regard to para 15(B) of the written statement the plea taken up by the plaintiff has been that by way of this amendment the defendants are making improvement and setting up a new case and trying to make wrong statements which is not permissible. A perusal of the proposed amendment indicates that instead of “that it is not customary to invite the member” the words required to be substituted are “and it is customary not to invite the number”. I he other amendments required are with regard to the sending of the records of election, including ballots and credentials to the District Governor and with regard to the taking up of the plea that no person would be allowed to vote who is not on the electoral list or whose name did not appear on the certificate. It has also been pleaded that the vote is of the club and not of any individual and that no rule or practice prohibits any single representative of a club from casting all the votes to which the club is entitled. It cannot be said that these are the pleas which do not arise out of the facts challenging the election of defendant Mo. 3 as the District Governor.
(13) With regard to the proposed amendment in para 15(C) the objection taken by the plaintiff has been that the proposed amendment is totally irrelevant and argumentative and that this amendment is not warranted by the pleadings or the reply to the plaintiff’s case and that the defendant cannot be permitted to contradict his previous stand and to make out a new case. The proposed amendment in fact is to the effect as to whether a single person can cast all the votes of the club or they were to be caste by individual members. It cannot be said that this is a plea which would change the stand of the defendants 1 & 2, who are defending the election of defendant No. 3, claiming that it has been conducted as per therules.
(14) With regard to the proposed amendments from paras 15(E) to15 (H) the objection taken up by the plaintiff is that these are matters of evidence and the defendant can incorporate them by getting the evidence recorded at the appropriate stage. It has further been pleaded that defendant Nos. 1 & 2 are introducing totally false story by seeking addition of false facts in order to raise imaginary disputes and controversies which are beyond the pate of adjudication by this Court. I am afraid this submission cannot be accepted. The defendants are desirous of making the aforesaid amendments to make their stand clear. Merely because these facts can also be brought on record by the defense during evidence would in my view be not sufficient to decline the prayer of defendants 1 & 2 to amend the written statement and to plead these facts specifically.
(15) With regard to proposed amendment in paras 15(J) and 15(1),defendants 1 & 2 want to substitute para 17 with a new para. By way of this amendment the defendants 1 & 2 have pleaded that the plaintiff acknowledged the election of defendant No. 3 and Ins own defeat at the said election on 9.2.1992 at a meeting of the seven clubs, including his own and felicitated and congratulated defendant No. 3 on his election as District Governor. These are the facts which can certainly be pleaded and it cannot be said that the defendants are setting up any new or contradictory case. There could, thus, be no valid objection to these amendments.
(16) By way of amendment in para 15(K) defendants 1 & 2 have prayed lor permission to make additions at the end of para 18 to the effect that it was wrong and denied that there was any right of the plaintiff to demand inspection or that the denial of inspection of records in any manner has any bearing on the validity of the election. The plaintiff has ample opportunity to dispute the position which will have to be proved by the parties during trial. It cannot be said that the proposed amendment is contradictory to the pleas already taken or that the plaintiff is taken by surprise by this amendment which has been proposed at the earliest.
(17) By way of amendment in paras 15(L) and l5(M) defendants 1 & 2 have prayed for making additions in paras 19 and 22 of the written statement. The only objection taken to this amendment is that these are totally redundant and such additions cannot be made by setting up a contradictory case. It is also pleaded that these .additions are irrelevant in deciding the matter incontroversy. By way of the proposed amendments the defendants 1 & 2 have pleaded that the result of the election was communicated to all the clubs, firstly by announcement at the District Conference as well as through the February 1992 issue of the Governor’s Monthly letter which was sent to all the clubs as well as others, including the plaintiff. It has also been pleaded that there was no violation of any bye-laws and that the election could be recalled by the District Governor inaccordance with the bye-laws of the Rotary International and that the plaintiff failed to avail of the remedies provided in the bye-laws. I am afraid there can possibly be no valid objection to the said amendments beingallowed.
(18) By way of admendment in para 15(N) the defendants 1 & 2have prayed for correction of the typographical errors appearing in different paras of the written statement. There can possibly be no objection to the correction of the typographical errors.
(19) By way of IAs. 11193 & 11194/92 it has been pleaded by defendants 1 & 2 that in the proposed amendments they want to amend the applications for amendment of the written statement and reply to theapplication under Order 39, Rules 1&2 and Section 151 Civil Procedure Code so as to indicate that the plaintiff was not present in the meeting held on 9.2.1992,which has wrongly been mentioned therein on account of erroneous understanding of the instructions by the Counsel for the defendants 1 & 2 with regard to the sequence of events. These applications have been moved immediately so as to make correction in the earlier applications, bringing on record the correct facts. There can possibly be no serious objection to these applications being allowed.
(20) As already discussed, the case is at the initial stage when pleadings are not complete as yet. The plaintiff can certainly be compensated by way of costs and it would be open to the plaintiff to file replication and rejoinder so as to controvert the pleas taken up by the defendants. It cannot be said that the intention of defendants 1 & 2 had been to delay the proceedings and that applications for amendments have been moved at the earliest without loss of any time and even prior to the date fixed for filing of the replication and rejoinder. The ends of justice, in my view,would be met if the amendments are allowed, subject to payment of Rs.2,000.00 as costs.
(21) As a result, all the four applications, viz. IAs. 9743, 9744, 11193& 11194/92, are allowed and the defendants 1 & 2 are permitted to amendthe written statement and reply to the application under Order 39, Rules1 &2 read with Section 151 Cpc, subject to payment of Rs. 2,000.00 as costs to the plaintiff. The payment of cost is conditional and the amended written statement and reply to the application for injunction would be taken on record only on payment of cost.