Karnataka High Court
N Pramod vs N Naveen on 2 August, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 2ND DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
REVIEW PETITION NO.822 OF 2012
IN
WRIT PETITION NO.9601 OF 2012(GM-CPC)
BETWEEN:
N.Pramod
S/o Sri N.Nagaraja Reddy
Aged about 26 years
Residing at No.437,
Meenakshi Apartment,
B Block, No.303, 27th Main,
I Sector, HSR Layout,
Bangalore - 560 102.
Now residing at No.485
16th Cross, 5th Main,
HSR 6th Sector,
Bangalore - 560 102. ...PETITIONER
(By M/s.M.Shivappa Associates, Advocates for Sri S.Anil
Kumar, Advocate)
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AND:
1. N.Naveen
S/o Sri N.Nagaraja Reddy
Aged about 36 years
Residing at No.202, 'D' Block,
N.D.Oliva, Somasandrapalya,
Agara Post, HSR II Extension,
Bangalore - 560 034.
2. N.Nagaraja Reddy
S/o Sri P.Narasimha Reddy,
Aged about 61 years
3. Smt.N.Udaya Kumari
W/o Sri N.Nagaraja Reddy,
Aged about 58 years
Respondents (2) and (3)
Residing at No.290
4th Main, 1st Block,
Koramangala,
Bangalore - 560 034. ...RESPONDENTS
*****
This Review Petition is filed under Order 47 Rule 1 of
CPC praying to review the order dated 04.06.2012 passed
in WP.No.9601/2012(GM-CPC).
This Review Petition coming on for admission this
day, the Court made the following:-
ORDER
This Petition has been filed seeking to review the order dated 4.6.2012.
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2. The learned counsel for the petitioner contends that there are two Judgments which were not brought to the notice of the Court and if they are considered the order under review requires to be recalled.
3. The Judgment in the case of USHA BALASAHEB SWAMI & OTHERS v.KIRAN APPASO SWAMI & OTHERS reported in AIR 2007 SC 1663 with reference to para-18 reads as follows:-
"18. It is equally well settled principle that a prayer for amendment of the plaint and 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 4 substituting a new cause of action in the plaint, may be objectionable."
The Hon'ble Supreme Court was of the view that the amendment of the plaint and the amendment of the written statement stand on different footings. That the general principle is that the amendment of the pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of the claim applies to amendments to plaints. It has no counterpart in the principles relating to the 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. In the facts of the said case the Hon'ble Supreme Court was of the view that the amendment sought for by the defendants was to add that neither plaintiff nor some of the defendants out of the set filing the written statement would acquire title in joint family property as they were illegitimate children. That such an amendment introduces a 5 proviso/condition to the admission made in the original written statement. Hence it was allowed. However, the same is not the case in the present case. Herein it is not a case of introduction of a new ground or substitution or alteration or taking inconsistent pleadings. What is sought for is the withdrawal of an admission made in the written statement. The admission is sought to be withdrawn. Herein it is not a case of introduction of a new ground or substitution or alteration or taking an inconsistent plea. What is sought for is the withdrawal of an admission made in the written statement. The admission made by the defendants is that there was already a partition deed which was acted upon. Such an admission is sought to be withdrawn by challenging the very partition deed. Therefore clearly, the amendment sought for is to withdraw the admission made. Therefore the aforesaid Judgment would not be applicable to the facts of this case. 6
3. The second Judgment relied on in the case of BALDEV SINGH & OTHERS vs. MANOHAR SINGH AND ANOTHER reported in AIR 2006 SC 2832 is with reference to para-16 which reads as follows:-
"16. This being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint. In the caseof M/s.Modi Spinning and Weaving Mills Co.Ltd., & ANOTHER vs. M/s.LADHA RAM & CO.(1976) 4 SCC 320), this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence."
Hereto the principle enunciated is with regard to inconsistent or alternate plea. That is not the case being 7 put up either by the writ petitioner or the review petitioner. It is not a case of inconsistent or an alternate plea. It is a case of withdrawal of an admission and the entire written statement. Hence, this Judgment is not applicable to the case on hand.
4. The trial Court relied upon the Judgment in the case of SHIVA RAMA UPADYAYA vs. RAJA SATYANARAYANA SETTY reported in ILR 2003 KARNATAKA 4814. Furthermore in the Judgment in the case of HEERALAL v.KALYAN MAL reported in AIR 1998 SC 618, the Hon'ble Supreme Court held that for seeking withdrawal of an admission by the defendant, it would displace the plaintiff's case and his right to get a preliminary partition decree. By relying on the law on the issue the Hon'ble Supreme Court held that even though inconsistent pleadings could be taken by the defendants based on the Judgment in the case of M/s.MODI SPINNING & WEAVING MILLS CO.LTD., AND ANOTHER v. M/s.LADHA 8 RAM & CO., reported in AIR 1977 SC 680, no inconsistent or alternate pleading could be raised which would displace the plaintiff's case and cause him irreparable loss. The facts of the present case would show that it is not merely withdrawing of the written statement. There are admissions made by the defendants in the written statement. The defendants have stated that there was a valid registered partition on 30-4-2002 and it was acted upon. This admission made by the defendants is sought to be withdrawn. They want to challenge the said partition alleging that the said partition was not valid and liable to be set aside. They intend to now support the case of the plaintiff. It is therefore clear that there is an admission of the said partition deed by him.
5. Under these circumstances relying on the aforesaid Judgments none of the admissions made by the defendants could be allowed to be withdrawn by them. While considering the petition, these factors have weighed 9 with the Court. In para-5 of the order under review it was held that whatever admissions or otherwise have been made, the defendant is bound by it and he cannot be allowed to retract the same. Even though none of the said Judgments were cited, the order under review has been passed keeping in view the various Judgments of the Hon'ble Supreme Court and the law as applicable. Therefore merely citing of Judgments, would not by itself be a ground of review. It is whether the principles as enunciated by the Hon'ble Supreme Court have been applied or not. The order under review clearly falls within the principles as enunciated by the Supreme Court. Under these circumstances, there is no error on the face of the record that calls for interference. Consequently, the Review Petition is dismissed.
Sd/-
JUDGE Rsk/-