Bombay High Court
Shri Tertuliano Renato De Silva & ... vs Shri Francisco Lourenco Bettencourt De ... on 17 February, 2000
Equivalent citations: 2000(3)BOMCR29, 2000(2)MHLJ812, 2001 A I H C 219, (2000) 1 GOALT 272, (2000) 3 CIVLJ 721, (2000) 3 ALLMR 545 (BOM), (2000) 3 BOM CR 29
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. This revision application arises from the order dated 8th February, 1999 passed in Civil Misc. Appln. No. 133/98/A in Special Civil Suit No. 67/90/A by the Civil Judge S.D., Vasco-da-Gama. By the impugned order, the Trial Court has dismissed the application dated 10-7-98 filed by the petitioners for amendment of the written statement.
2. Placing reliance upon the judgment of the Apex Court in the matter of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (dead) through LR.S. and others, reported in 1995 Supp. (3) S.C.C. 179, Shri Kantak, learned Advocate appearing for the petitioners, submitted that it is settled law that it is open to the defendant to take even contrary stands or contradictory stands in the written statement and bearing in mind the said judgment of the Apex Court, the Trial Court has clearly acted with material irregularity in rejecting the application for amendment filed by the respondents. He further submitted that by the proposed amendment, the petitioners/defendants had sought to raise an additional plea based on facts which are already pleaded in the written statement and in addition had sought leave to introduce the facts which had occurred subsequent to the filing of the suit. Shri Kantak further submitted that the petitioners are not pressing for introduction of the amendment as disclosed in proposed para (A) which was relating to the plea of limitation sought to be raised by the petitioners. The said amendment which is not pressed is to the effect:- "The time for filing such a suit has elapsed since the suit is to enforce a contract executed in 1971. Therefore the suit should be dismissed as time barred." As regards the plea of prescription sought to be introduced by the proposed amendment, the learned Advocate submitted that the said proposed amendment will not non-suit the plaintiffs and it is in the nature of an additional plea of defence for dismissal of the suit.
3. On the other hand, Shri R.G. Ramani learned advocate appearing for the respondents, placing reliance upon the judgment of the Apex Court in the matter of Heeralal v. Kalyan Mal and others, reported in 1998 A.I.R. S.C.W. 219 submitted that the decision of the Apex Court in the matter of Basavan Jaggu Dhobi's case (supra) has been clearly distinguished by the Apex Court and referring to its earlier decision of a Bench of three Hon'ble Judges, the Apex Court therein has held that the defendant cannot be allowed to take an inconsistent stand which would prejudicially affect the plaintiff and would virtually amount to non-suit the plaintiff in the case. In that connection, attention is drawn to paras 7, 9 and 10 of the said judgment of the Apex Court. He further submitted that the case pleaded by the defendants in the original written statement was to the effect that the property was physically partitioned sometime in 1974 and since then the parties are in exclusive possession of their partitioned share. The proposed amendment regarding the plea of prescription is to the effect that the defendants are in exclusive possession of the property from 24th December, 1971 that is from the date of the Deed of Exchange which is the main document based on which the suit has been filed by the respondents. As regards the amendment to para 3(H) and further in the form of para 3(L), the learned Advocate submitted that the same no doubt refers to the events subsequent to the filing of the suit, but the plea of possession sought to be introduced in the proposed sub-para of 3(L) is in the nature of plea of prescription which plea was never taken in the original written statement. He also referred to the Issues framed by the Trial Court and more particularly to Issue No. 4 which requires the petitioners to prove that the properties were partitioned as shown in the sketch and for the consideration mentioned in para 3(e) of the plaint in the middle of 1974. Referring to the said Issue, the learned Advocate submitted that the plea of prescription sought to be raised by way of amendment is totally contrary to the case pleaded and made known to the plaintiff and which the plaintiff is required to meet in answer to the defence raised by the petitioners in the suit. He also submitted that the examination-in-chief of the plaintiff has already been concluded and the suit is at the stage of cross-examination of the plaintiff.
4. In Basavan Jaggu Dhabi's case (supra), the Apex Court has held that the view taken by the courts below that it is not open to the defendant to amend his written statement under Order 6, Rule 17 of C.P.C. by taking contrary stands or contradictory stands than what was stated originally in the written statement is opposed to the settled law and that it is open to the defendant to take even contrary stands or contradictory stands thereby the cause of action is not in any manner affected. The law that no contradictory stand can be taken applies only to a plaint when the same is sought to be amended by introducing a new cause of action. That was a decision by a Bench of two Hon'ble Judges of the Apex Court.
5. In Heeralal v. Kalyan Mal (supra) the Apex Court has held that when the amendment sought in the written statement is of a nature as to displace the plaintiffs case it cannot be allowed. While arriving at the said conclusion, the Apex Court has referred to its earlier decision in the matter of Modi Spinning & Weaning Mills Co. Ltd. v. Ladha Ram & Co., . The said decision was by a Bench of three Hon'ble Judges of the Apex Court, wherein it was held that an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendant in the written statement cannot be allowed and if such amendments are allowed in the written statement, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the defendants.
6. Perusal of the application for amendment discloses that the petitioners by introducing the pleadings in the form the para (B) wants to raise a plea to the effect that the parties to the suit are in exclusive possession of their respective properties from the date of execution of Deed of Exchange dated 24th December, 1971. However, as rightly submitted by the learned Advocate for the respondents, the plea sought to be raised in the original written statement in para 3(f) is to the effect that actual partition of the property was effected by the parties somewhere in the middle of 1974 and since then the parties are in exclusive possession of their partitioned shares. Perusal of the unamended written statement as it stands was to the effect that the properties were partitioned sometimes in the year 1974 and since then the parties are in exclusive possession of their partitioned shares. As against this, the plea sought to be introduced by way of amendment is to the effect that there never was any physical partition consequent to the Deed of Exchange dated 24th December, 1971 and the parties are in exclusive possession of their respective properties even from the date of the Deed of Exchange. The issues framed on the basis of the pleadings of the parties clearly disclose that one of the issues requires the petitioners to prove that the properties were partitioned as shown in the sketch and for the consideration mentioned in para 3(e) of the plaint in middle of 1974.
7. The original written statement was filed by the petitioners on 10th July, 1992. The application for amendment was filed on 10th July, 1998, exactly six years after filing the original written statement. It is also a matter of record that the application for amendment of the written statement was filed after conclusion of the examination-in-chief and after commencement of the cross-examination of the plaintiff.
8. Para 1 of the application for amendment discloses that the proposed amendment has been sought on account of Advocate for the petitioners having found it necessary to amend the written statement in the course of the cross-examination of the plaintiff.
9. Bearing in mind all the above referred facts, and applying the law laid down by the Apex Court, as regards the amendment to the written statement, it is clear that the defendant though entitled to take contrary or contradictory stand in his defence, such plea cannot be allowed to be introduced in the form of amendment, when it results in irreparable injury to the plaintiff either by way of displacing the admission made by the defendant in the original written statement or when it amounts to non-suiting the plaintiff inasmuch as the plaintiff being made aware of the case which he has to meet in answer to the defence raised by the defendant in the original written statement and having taken a particular stand and led evidence in respect thereof, it is not permissible thereafter to allow the defendant to introduce a totally contradictory plea in defence to the prejudice of the plaintiff. The law in that regard has been well settled from the time of the decision of the Apex Court in the matter of Modi Spinning & Weaving Mills (supra). Undoubtedly, the said decision in the case of Modi Spinning & Weaving Mills (supra) was by a Bench of three Judges and has been followed by the Apex Court in the recent decision in the matter of Heeralal v. Kalyan Mal (supra). The Apex Court has clearly distinguished the decision in its earlier case namely Basavan Jaggu Dhobi (supra) by observing thus :-
"It has to be appreciated that in that case even though inconsistent stand was permitted to be taken by the defendant, the stand by itself did not seek to displace any admission on the part of the defendant in favour of the plaintiff. The defendant from the inception contended that the plaintiff's suit should be dismissed but the ground on which dismissal was claimed was sought to be changed by an alternative plea. Therefore, there was no question of any prejudice to the plaintiff if such an inconsistent stand was allowed. That is how this Court in the aforesaid decision held that such amendment in written statement could have been granted. Such is not the case before us. Here if the amendment is granted, the whole case of the plaintiff qua admitted joint family properties would get displaced as the defendants themselves had in clear terms admitted that in 7 items of properties in Schedule-A plaintiff had 1/3rd undivided interest. On that basis even preliminary decree could have been passed by the Court at that stage. As that right which had accrued to the plaintiff, as noted earlier, would be irretrievably lost if such amendment is allowed qua five of these seven items in Schedule-A of the plaint for which by the impugned amendment the earlier admissions were sought to be recalled."
10. In the case in hand, the petitioners in para 3(f) of the written statement have clearly stated that actual partition of the property was effected by the parties somewhere in the middle of 1974 and since then the parties are in exclusive possession of the partitioned share. The proposed amendment speaks of denial of any physical partition even consequent to the Deed of Exchange dated 24th December, 1971. The right which had accrued to the plaintiff on 'account of clear admission on the part of the petitioners of physical possession of the property sometime in 1974, it is not permissible for the petitioners to take away the said right of the respondents/plaintiffs pursuant to such admission by the petitioners/defendants in their original written statement. Being so, no fault can be found with the impugned order dismissing the application for amendment as far as it relates to para (B) of para 1(a) in the application for amendment dated 10-7-98 is concerned.
11. As regards the proposed amendment to para 3(H) of the written statement and in the form of new para 3(L) is concerned, undoubtedly the pleadings therein relate to the facts which have occurred subsequent to the filing of the suit. The plea regarding exclusive possession in proposed in para 3(L) do not in any manner relate to the plea of prescription as plea of prescription is nowhere raised in the original pleadings in the written statement. The said plea regarding in the written statement. The said plea regarding exclusive possession has necessarily to relate to the pleadings already on record that is in relation to the physical partition of the property with effect from 1974 as stated in para 3(f). Since the pleadings which are proposed to be introduced in the form of addition to para 3(H) and by way of new para 3(L) relate to the events which have occurred subsequent to the filling of the suit, there can be no objection for allowing the defendant to introduce the said pleadings in the written statement. The finding in the impugned order disallowing amendment to the pleadings on the ground that the pleadings nowhere disclose the fact consequent upon filing of the suit is contrary to the records and cannot be sustained. The impugned order to that extent is to be set aside and the said amendment to para 3(H) and in the form of new para 3(L) in the written statement is to be allowed.
12. In the result, the revision application partly succeeds. The application dated 10-7-98 filed by the petitioners for amendment of the written statement to the extent it proposes to amend the written statement by adding the pleadings to para 3(H) as disclosed in para l(b) of the application, as also in para 1(c) of the application in the form of new para as 3(L) is hereby allowed. The application for amendment so far as it seeks to introduce the pleadings in the form of paras (A) and (B) as disclosed in para l(a) of the said application is hereby dismissed. The amendment to be carried out within fifteen days from the date of receipt of the writ by the Trial Court. Rule is made absolute in the above terms with no order as to costs. Interim relief granted on 25-6-99 stands vacated.
13. Revision Application partly allowed.