Before the Hon’ble State Consumer Disputes
Redressal Commission, West Bengal
11A, Mirza Ghalib Street, Kolkata – 700087
Under the Consumer Protection Act 2019
Revision Petition No. 3 of 2021
(against the order dated 24th December’
2020, in Complaint Number CC/48/2018, of the District Commission, South 24
Parganas)
In
the matter of ;
Sr
Abhijit Ghosh,
________Revisionist
-
Versus
–
M/s. Madhabi
Service Station, and Others,
________Respondents
Brief
Notes of Argument on behalf of the Respondent nos. 4 & 4(a) being M/s.
Indian Oil Corporation Limited;
The
present Revisional application by the Revisionist who is Complainant in
Consumer Complaint before the Learned District Commission, is misconceived
which resulting in abuse of due process of law;
This
Respondent appeared in the Consumer complaint upon receipt of the notices
served by the Learned District Commission and submitted the Written Version,
therein;
The
notice on the respondents has given by the Learned District Commission, in
pursuance of compliance of Order dated 22/10/2019, passed in First Appeal No.
A/10/2019, by the Hon’ble State Commission, wherein it has been contended as
“it was imperative to add this bank as a party to the case. Similarly, the
versions of UBI, SBI, and Indian Oil in this matter too were of great
significance.”
The
present revision has been preferred by the Complainant challenging the Order
no. 14, dated 24/12/2020, passed by the Learned District Commission, South 24
Parganas, in which the Learned District Commission was pleased to allow the
amendment of certain relevant facts in written version of the respondent no.1,
herein on payment of cost.
The
amendment in written version of the respondent no.1, has allowed justifiable in
the interest of administration of justice on payment of cost, so far. The
pleading can be amend at any stage of the proceeding for the fair adjudication
on necessary facts, so far.
In J. Samuel and
Ors. V. Gattu Mahesh and Ors. 2012 AIR SCW
1035, Hon'ble Supreme Court has observed thus :-
"The primary aim of
the court is to try the case on its merits and ensure that the rule of justice
prevails. For this the need is for the true facts of the case to be placed
before the court so that the court has access to all the relevant information
in coming to its decision. Therefore, at times it is required to permit parties
to amend their plaints. The Court's discretion to grant permission for a party
to amend his pleading lies on two conditions, firstly, no injustice must be
done to the other side and secondly, the amendment must be necessary for the
purpose of determining the real question in controversy between the parties. However,
to balance the interests of the parties in pursuit of doing justice, the
proviso has been added which clearly states that 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."
The Court may at any
stage of the proceedings allow both 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 question 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.
In
Vidyabai and others vs. Padmalatha and another – AIR 2009 SC 1433, Hon’ble
Supreme Court has discussed the legisltative intent behind bringing the proviso
to Rule 17 of Order 6 of CPC. At para 7 of the said judgment it was opined that
the provisions of Order 6 Rule 17 of the CPC are in mandatory form. The court’s
jurisdiction to allow an application under Order 6 Rule 17 of CPC is taken away
unless the conditions precedent therefor are satisfied i.e., the court must
come to a conculsuion that inspite of due diligence the parties could not have
raised the matter before the commencement of trial. Thus, the proviso indicates
that once the trial commences, no amendment.
Hon'ble
Supreme Court in the case of Usha Balashaheb Swami and Ors. v. Kiran Appaso
Swami and Ors.( AIR 2006 SC 1663) has held that : A prayer for amendment of the
plaint and a prayer for amendment of the written statement stand on different
footings. The general principle that amendment of pleadings cannot be allowed
so as to alter materially or substitute cause of action or the nature of claim
applies to amendments to plaint. It has no counterpart in the principles
relating to amendment of the written statement. Therefore, addition of a new
ground of defence or substituting or altering a defence or taking inconsistent
pleas in the written statement would not be objectionable while adding,
altering or substituting a new cause of action in the plaint may be
objectionable. In the case of amendment of a written statement, the Courts are
more liberal in allowing an amendment than that of a plaint as the question of
prejudice would be far less in the former than in the latter case.
Photostat
copy of the said Judgment of the Hon’ble Apex Court is enclosing herewith and
marked as Annexure – “A”.
The
present revision is questioning on allowing the amendment of written version of
the respondent no.1, while the trial has not yet been commenced, is not
sustainable to intervene into in the light of the decisions of the Hopn’ble
Apex Court, as discussed above.
Therefore
the present revision application should be dismissed with appropriate cost on
the revisionist, who cause unnecessary delay in deciding the consumer matter
before the Learned District Commission.
Through
___________
Advocate
For
the Respondent no. 4 & 4(a);
M/s.
Indian Oil Corporation Limited
Date
: 1st day of August’ 2022;
Place
: Kolkata
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