Usha
Balashaheb Swami & Ors Vs. Kiran Appaso Swami & Ors [2007] Insc 422 (18 April
2007)
Tarun Chatterjee & R.V.Raveendran
CIVIL APPEAL NO. 2019 OF 2007 [ Arising out of SLP {c} No.3366 of 2006 ]
TARUN CHATTERJEE, J.
Leave granted.
This appeal is directed against the order dated 3rd October 2005 of the High Court of Judicature at Bombay in Writ Petition No 2390 of 2005 whereby the order
passed by the Civil Judge, Senior Division, Kolhapur in Special Civil Suit No.
503 of 1996 was set aside.
The plaintiff, who is the respondent no. 1 in the present appeal,
(hereinafter called the "plaintiff") has instituted a suit for
partition and separate possession of the suit properties as fully described in
Para 1 of the plaint on the allegations stated in brief as follows :- The suit
properties originally belonged to one Veersangayya (since deceased). On his
death, Appasao (since deceased) and Balasao (since deceased) came to inherit
the suit properties. The appellants who are defendants 8 to 14 in the suit are
the heirs and legal representatives of Balasao (since deceased). The Plaintiff
inherited one half share of the suit properties jointly with defendant nos. 1
to 7, on the death of Appasao. Since the appellants had refused to partition
the suit properties and deliver separate possession, the plaintiff filed the
suit for partition and possession.
The defendant nos. 1 to 7 who are respondent nos. 2 to 8 in this appeal
entered appearance in the suit and filed their written statement supporting the
case of the plaintiff.
After entering appearance in the suit, the appellants on 28th February, 2003 filed their written statement in which they admitted that the plaintiff with
defendant No.1 to 7 were entitled to one half share in the suit properties.
Initially, an application for amendment of the written statement was filed
by the appellants on 18th June, 2003, which was contested by the plaintiff. The
said application was allowed by the Civil Judge, Senior Division, Kolhapur, but
subsequently on a writ application filed before the High Court at the instance
of the plaintiff, the order allowing amendment was set aside and the
application for amendment was rejected. However, liberty was given to the
appellants to file a fresh application for amendment of the written statement.
Pursuant to such liberty, a fresh application for amendment of the written
statement was filed on 12th March, 2004 by the appellants, which was also
contested by the plaintiff.
In the application for amendment of the written statement the appellants had
sought to add that the plaintiff and defendant Nos.2 to 7 could not acquire
right, title and interest in the joint family properties, as they were the
illegitimate children of the deceased Appasao. In the application for
amendment, the appellants sought to allege that Appasao (since deceased) was
initially married to defendant no. 1. As she had no issue, the said Appasao
took defendant No.2 as his second wife after coming into force of the Hindu Marriage
Act, 1955. The appellants alleged that since the marriage between Appasao
and defendant No.2 was a nullity, neither defendant No.2 nor the plaintiff and
defendant Nos. 3 to 7 were entitled to claim any share in the suit properties.
The plaintiff contested the application for amendment of the written
statement by filing a written objection in which the plaintiff mainly sought
rejection of the amendment of the written statement on the ground that since
the appellants in their written statement had admitted that the plaintiff and
defendant Nos.1 to 7 were jointly entitled to half share of the suit
properties, they could not be permitted to withdraw such admission by amendment
of the written statement.
The learned Civil Judge, Senior Division, Kolhapur allowed the application
for amendment of the written statement and the matter was carried in revision
by the plaintiff by a writ petition before the High Court. The High Court, by
the impugned order, had set aside the order of the trial court and rejected the
application for amendment of the written statement, inter alia, on the ground
that since the appellants had categorically admitted in their written statement
that the respondents were entitled to half share in the suit properties, it was
not permissible for them to withdraw such admission by an amendment of the
written statement as that will amount to totally displacing the case of the
plaintiff causing irretrievable prejudice to him.
In order to come to this conclusion, the High Court relied on a decision of
this Court in the case of Modi Spinning &
Weaving Mills Co. Ltd. v. Ladha Ram & Co. [1976(4) SCC 320]. According
to the High Court, the decision in the case of Modi Spinning & Weaving
Mills Co. Ltd. (supra) was a clear authority for the proposition that once a
written statement contained an admission in favour of the plaintiff, by
amendment, such an admission of the defendants, cannot be withdrawn and if
allowed, it would amount to totally displacing the case of the plaintiff, causing
irretrievable prejudice to him. Similarly relying on another decision of this
Court in the case of Heera Lal v.
Kalyan Mal & Ors. [1998 (1) SCC 278], the High Court held that the
amendment, if allowed, would displace the case of the plaintiff and his right
to get the partition decree and, therefore, amendment was impermissible in law.
Dissatisfied with this order of the High Court, this Special Leave Petition
has been filed in respect of which leave has already been granted.
On behalf of the appellants, Mr. V.N. Ganpule, learned senior counsel
contended, at the first instance, that the question of withdrawing admission
made in written statement could not arise as the appellants even after the
amendment, have kept the "admission" made in para 8 intact but only
have added certain additional facts which need to be proved by the plaintiff
and defendant nos. 1 to 7 to get their respective shares in the suit properties
alleged to have been admitted by the appellants in the written statement.
Secondly, it was contended that even assuming that by such amendment,
appellants sought to withdraw the admission made by them in para 8 of the
written statement then also the High Court was grossly in error rejecting the
application for amendment of the written statement because by such amendment,
the appellants had only sought to explain such admissions or in any case, the
amendment would only amount to raising an inconsistent plea which is
permissible in law in the case of amendment of written statement. In support of
this contention, reliance was placed by Mr. Ganpule on the case of Baldev Singh
& Ors. v. Manohar Singh [2006 [6] SCC 498]. It was also submitted by Mr.
Ganpule that the High Court also fell in error in relying on the decision of
this Court in the case of Modi Spinning & Weaving Mills Co. Ltd. (supra) as
the said decision, in fact advances and supports the case of the appellants.
Finally it was argued that since the trial court has allowed the amendment in
its discretion, the High Court was not justified in reversing the discretionary
order of the trial court in the exercise of its supervisory jurisdiction under
Article 227.
The aforesaid submissions of the Learned Senior Counsel appearing for the
appellants were contested by the Learned Senior Counsel Mr. Udey Lalit,
appearing for the plaintiff. Mr.
Lalit has contended that clear admissions made by the appellants in their
written statement admitting the rights of the plaintiff cannot be allowed to be
withdrawn by amendment of the written statement as that would amount to totally
displacing the case of the plaintiff and cause the plaintiff irretrievable
prejudice. In support of this contention, Mr. Lalit also relied on the decision
of this court in the case of Modi Spinning &Weaving Mills Co. Ltd (supra) which
was relied on by the High Court while rejecting the application for amendment
of the written statement. He strongly contended that if such amendment was
allowed, admissions made by the appellants in Para 8 of their written statement
would be entirely washed out as a bare perusal of the written statement would
clearly show that the appellants have admitted one-half share of the plaintiff
and defendant nos. 1 to 7 in the suit properties in their written statement.
Mr. Lalit also contended that the decision in Baldev Singh's case (supra)
relied on by the learned counsel for the appellants in support of his
contention would not be applicable in the facts of this case. Therefore Mr.
Lalit contended that the amendment of the written statement introducing an entirely
different and inconsistent case cannot be allowed as it would displace the
admission made in para 8 of the written statement and deprive the plaintiff of
a valuable right already accrued to him on account of the admission.
Relying on the decision in the case of Heera Lal (supra) as relied on by the
High Court in the impugned order, Mr. Lalit contended that the admission made
in para 8 of the written statement cannot be washed out by an amendment of the
written statement. Accordingly, Mr. Lalit invited us to hold that the High
Court was fully justified in rejecting the application for amendment of written
statement of the appellant in the exercise of its power under Article 227 of
the Constitution.
Having heard the rival submissions of the learned counsel for the parties
and after considering the written statement as well as the amendment of the
written statement and the orders passed by the High Court and the trial court
in detail, we are of the view that the High Court had fallen in error in
rejecting the application for amendment of the written statement.
Before dealing with the question whether the amendment sought for was
rightly rejected by the High Court or not, we may first consider the principles
under which amendments of pleadings can be allowed or rejected. The principle
allowing or rejecting an amendment of the pleadings has emanated from Order 6
Rule 17 of the Code of Civil Procedure, which runs as under:
"The Court may at any stage of 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"
(Underlining is ours) From a bare perusal of Order 6 Rule 17 of the Code of
Civil Procedure, it is clear that the court is conferred with power, at any
stage of the proceedings, to allow alteration and amendments of the pleadings
if it is of the view that such amendments may be necessary for determining the
real question in controversy between the parties. The proviso to Order 6 Rule
17 of the Code, however, provides that no application for amendment shall be
allowed after the trial has commenced unless the court comes to a conclusion
that in spite of due diligence, the party could not have raised the matter
before the commencement of trial. However, proviso to Order 6 Rule 17 of the
Code would not be applicable in the present case, as the trial of the suit has
not yet commenced.
It is now well-settled by various decisions of this Court as well as those
by High Courts that the courts should be liberal in granting the prayer for
amendment of pleadings unless serious injustice or irreparable loss is caused
to the other side or on the ground that the prayer for amendment was not a
bonafide one.
In this connection, the observation of the Privy Council in the case of Ma
Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C.
249] may be taken note of. The Privy Council observed:
"All rules of courts are nothing but provisions intended to secure the
proper administration of justice and it is, therefore, essential that they
should be made to serve and be subordinate to that purpose, so that full powers
of amendment must be enjoyed and should always be liberally exercised, but
nonetheless no power has yet been given to enable one distinct cause of action
to be substituted for another, nor to change by means of amendment, the
subject-matter of the suit."
(Underlining is ours) It is equally well settled principle 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.
Such being the settled law, we must hold that 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 [see B.K. Narayana Pillai v.
Parameswaran Pillai (2000(1) SCC 712) and Baldev Singh & Ors. v. Manohar
Singh (2006 (6) SCC 498)].
Even the decision relied on by the plaintiff in Modi Spinning (supra)
clearly recognises that inconsistent pleas can be taken in the pleadings. In
this context, we may also refer to the decision of this Court in Basavan Jaggu
Dhobi v.
Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case,
the defendant had initially taken up the stand that he was a joint tenant along
with others.
Subsequently, he submitted that he was a licensee for monetary consideration
who was deemed to be a tenant as per the provisions of Section 15A of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held
that the defendant could have validly taken such an inconsistent defence. While
allowing the amendment of the written statement, this Court observed in Basavan
Jaggu Dhobi's case (supra) as follows :- "As regards the first contention,
we are afraid that the courts below have gone wrong in holding that it is not
open to the defendant to amend his statement under Order 6 Rule 17 CPC by
taking a contrary stand than was stated originally in the written statement.
This is opposed to the settled law open to a defendant to take even contrary
stands or contradictory stands, the cause of action is not in any manner
affected. That will apply only to a case of the plaint being amended so as to
introduce a new cause of action."
As we have already noted herein earlier that in allowing the amendment of
the written statement a liberal approach is a general view when admittedly in
the event of allowing the amendment the other party can be compensated in
money.
Technicality of law should not be permitted to hamper the Courts in the
administration of justice between the parties. In the case of L.J. Leach and
Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357], this Court observed
"that the Courts are more generous in allowing amendment of the written
statement as the question of prejudice is less likely to operate in that
event". In that case this Court also held "that the defendant has
right to take alternative plea in defence which, however, is subject to an
exception that by the proposed amendment the other side should not be subjected
to serious injustice."
Keeping these principles in mind, namely, that in a case of amendment of a
written statement the Courts would be more liberal in allowing than that of a
plaint as the question of prejudice would be far less in the former than in the
latter and addition of a new ground of defence or substituting or altering a
defence or taking inconsistent pleas in the written statement can also be
allowed, we may now proceed to consider whether the High Court was justified in
rejecting the application for amendment of the written statement.
As noted herein earlier, Mr. Lalit placed strong reliance on the case of
Heera Lal (supra) to contend that the admission made by the appellants in the
original written statement in the facts and circumstances of the case could not
at all be taken away. In our view, the factual position of the case before us
and the facts involved in that decision are different. In Heera Lal's case
(supra) a definite stand was taken that the plaintiff had a share in seven out
of the ten scheduled properties as they belonged to the plaintiff and the
defendants 1 and 2 as joint family properties.
However, the defendants moved an application for amendment of the written
statement, which was not allowed by the trial court.
While dealing with this nature of amendment, in that decision, this Court
observed that it was wrong on the part of the High Court to assume that by
taking an inconsistent stand, the respondents would prejudicially affect the
appellant's case. The Court observed:
"In our view, the order passed by the High Court under Section 115,
CPC, allowing withdrawal of earlier admissions of defendant nos. 1 and 2 in
their original written statement about 5 out of 7 items of Schedule-A
properties cannot be sustained. The reason is obvious. So far as Schedule-A
properties were concerned, a clear admission was made by defendant nos. 1 and 2
in their joint written statement in 1993 that 7 properties out of 10 were joint
family properties wherein the plaintiff had l/3rd share and they had 2/3rd
undivided share. Once such stand was taken, naturally it must be held that
there was no contest between the parties regarding 7 items of suit properties
in Schedule-A. The learned Trial Judge, therefore was perfectly justified in
framing Issue No. 2 concerning only remaining three items for which there was
dispute between the parties. In such a situation under Order XV Rule 1 of CPC
the plaintiff even would have been justified in requesting the court to pass a
preliminary decree forthwith qua these 7 properties. The said provision lays
down that, 'where at the first hearing of a suit it appears that the parties
are not at issue on any question of law or of fact, the Court may at once
pronounce the judgment'. Even that apart, the defendants-respondent did not
think it fit to move any amendment application for getting out of such
admission till the plaintiff moved an application for appointment of receiver
regarding admitted items of properties. It is only thereafter that the
application for amendment was moved.
Learned Trial Judge was right when he observed that even the ground made out
in the application were not justified. Consequently, there is no question of
taking inconsistent stand which would not have affected pre-judicially the
plaintiff as wrongly assumed by the High Court."
Keeping the aforesaid observations and also the facts involved in Heera
Lal's case (supra) in mind, we are of the view that the decision in that case
may not be of any help to respondents.
Coming back to the facts of the present case regarding amendment of the
written statement, we find that the appellants had stated in para 8 of their
original written statement "that plaintiff and defendant nos. 1 to 7 have
got = share and defendant nos. 8 to 14 have got = share in all the family
properties" and that the maternal aunts have also got share. By seeking
incorporation of paras 8A and 8B and substitution of para 8 in the written
statement, the appellants have maintained the admissions made by them in para 8
of the written statement but added a proviso or condition to the admission.
Therefore, it was not a case of withdrawal of the admission by the appellants
by making the application for the amendment of the written statement but in
fact such admission was kept intact and only a proviso has been added. This, in
our view, is permissible in law and the question of withdrawing the admission
made in para 8 in its entirety in the facts as noted herein above, therefore,
cannot arise at all.
Since we have already held that in the case of amendment of a written
statement, the defendant is entitled to take new defence and also to plead
inconsistent stand and in view of our discussions made herein above that by
making the application for amendment of the written statement, admission was
not at all withdrawn by the appellants nor a totally inconsistent plea was
taken by the appellants in their application for amendment of the written
statement, the High Court had failed to appreciate that by the proposed
amendment, the appellants were not withdrawing their admission in respect of
the half share in the ancestral property rather they only added that the
plaintiff and defendant nos. 3 to 8 could be entitled to such share if they
proved to be the legitimate children of Appasao (since deceased) who was
entitled to half share in the property of late Veersangayya. That apart, it
appears from the record that the written statement filed by the appellants was
before the death of defendant no.1 (first wife of Appasao). After the death of
defendant no.1, when plaintiff and defendant nos. 2 to 8 claimed themselves as
heirs and legal representatives of defendant No.1, the appellants sought
amendment of the written statement challenging the legitimacy of plaintiff and
defendant nos. 2 to 8. In view of the discussions made herein above, we do not
think that it was impermissible in law for the appellants to seek amendment of
the written statement in the manner it was sought for.
Therefore, it was neither a case of withdrawal of admission made in the
written statement nor a case of washing out admission made by the appellant in
the written statement. As noted herein earlier, by such amendment the appellant
had kept the admissions intact and only added certain additional facts which
need to be proved by the plaintiff and defendant no.2 to 8 to get shares in the
suit properties alleged to have been admitted by the appellants in their
written statement. Accordingly, we are of the view that the appellants are only
raising an issue regarding the legitimacy of plaintiff and defendant nos. 3 to
7 to inherit the suit properties as heirs and legal representatives of the
deceased Appasao. Therefore, it must be held that in view of our discussions
made herein above, the High Court was not justified in reversing the order of
the trial court and rejecting the application for amendment of the written
statement.
As noted herein earlier, Mr. Lalit while inviting us to reject the
application for amendment of the written statement as was done by the High
Court had placed strong reliance on the case of Modi Spinning (supra). In that
case, a suit was filed by the plaintiff for claiming a decree for Rs.1,30,000
against the defendants. The defendants in their written statement admitted that
by virtue of an agreement dated 7th April, 1967 the plaintiff worked as their
stockists-cum distributor. After three years the defendants by application
under Order 6, Rule 17 of the Code sought amendment of written statement by
substituting paras 25 to 26 with a new para in which they took the fresh plea
that plaintiff was a mercantile agent cum purchaser, meaning thereby that they
sought to go beyond their earlier admission that the plaintiff was a
stockist-cum-distributor. In our opinion, the present case can be distinguished
from that of Modi Spinning case. In that case, the pleadings that were being
made by the plaintiff for amendment were not merely inconsistent but were resulting
in causing grave and irretrievable prejudice to the plaintiff and displacing
him completely. In paragraph 10 of this decision this Court also appreciated
that inconsistent pleas can be made in the pleadings but the effect of
substitution of paragraphs 25 and 26 in that decision was not making
inconsistent and alternative pleadings but it was seeking to displace the
plaintiff completely from the admissions made by the defendants in the written
statement. In the facts of that decision this Court further held that if such
amendments were allowed, the plaintiff will be irretrievably prejudiced by
being denied the opportunity of extracting the admission from the defendants.
That apart in that decision the High Court also rejected the application for
amendment of the written statement and agreed with the trial court.
This decision in the case of Modi Spinning would not stand in the way of
allowing the application for amendment of the written statement as the question
of admission by the defendants made in the written statement, more particularly
in paragraph 8 of the written statement, was not at all withdrawn by the
amendment but certain paragraphs were added inviting the plaintiff and
defendants 1 to 7 to prove their legitimacy on the death of Appaso. That being
the position, we do not think that Modi Spinning case will at all stand in the
way of allowing the application for amendment of the written statement. It is
true that in the case of Basavan Jaggu Dhobi this Court, in the facts of that
case, held that it would not be open to a party to wriggle out of admission as
admission is a material piece of which would be in favour of a person who would
be entitled to take advantage of that admission. In the present case, admission
made in Para 8 of the written statement was not at all withdrawn but only a
rider and/or proviso has been added keeping the admission in tact. In that
decision also this Court has appreciated the principle that even the admission
can be explained and inconsistent pleas can be taken in the pleadings and thus
amendment of the written statement can be allowed. In our opinion, as noted
herein earlier, in the present case, the amendment would not displace the case
of the plaintiff, as it would only help the court to decide whether the
respondents are eligible to the said share in the property on proof of their
legitimacy for which no irretrievable prejudice would be caused either to the
plaintiff or to defendant nos. 2 to 8. Accordingly, we do not think that
Basavan Jaggu Dhobi could be applied in the facts of this case, which is
clearly distinguishable.
Again in the case of Akshaya Restaurant v. P.
Anjanappa [1995 [Supp] (2) SCC 303] this Court held that even an admission
in the pleadings can be explained and inconsistent pleas can be taken in amendment
petition even after taking a definite stand in the written statement.
However, in that decision the amendment of the written statement was
rejected mainly on the ground that respondents had entered into an agreement
for development of the land for mutual benefit of the parties and thereby the
trial court came to a conclusion that it was not open to the respondent to
explain whether the agreement was one of sale or for mutual benefit since the
agreement was sub silentio in that behalf. In that decision this Court further
held that the High Court in the exercise of power under Section 115 of the Code
of Civil Procedure committed no material irregularity in permitting amendment
of the written statement. This Court while considering the question whether the
admission can be withdrawn or not observed as follows:
"It is settled law that even the admission can be explained and even
inconsistent pleas could be taken in the pleadings. It is seen that in
paragraph 6 of the written statement definite stand was taken but subsequently
in the application for amendment, it was sought to be modified as indicated in
the petition. In that view of the matter, we find that there is no material
irregularity committed by the High Court in exercising its power under Section
115 C.P.C. in permitting amendment of the written statement."
(Underlining is ours) For the reasons aforesaid, we are unable to sustain
the judgment of the High Court rejecting the application for amendment of
written statement on the ground that if such amendment was allowed it would
seriously prejudice the plaintiff. There is yet another aspect of the matter.
The trial court on consideration of the written statement as well as the
application for amendment of the written statement, in its discretion allowed
the application for amendment of the written statement. The High Court ought
not to have reversed the said order of the trial court, rejecting the
application for amendment of the written statement, when the trial court has
exercised its discretion in allowing the amendment of written statement on
consideration of the principles of law and the material on record.
For the reasons aforesaid, the appeal is allowed and the order of the High
Court rejecting the prayer for amendment of the written statement is set aside.
The application for amendment of the written statement thus stands allowed.
The trial court is now directed to dispose of the suit at the earliest
possible time preferably within six months from the date of communication of
this order without granting any unnecessary adjournment to either of the
parties.
There will be no order as to costs.
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