Allahabad High Court
Ramesh Duggal Alias Pappu vs Pt. Ram Shanker Mishra Trust Chief ... on 5 May, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On : 27.03.2023 Delivered On : 05.05.2023 Court No. - 2 Case :- MATTERS UNDER ARTICLE 227 No. - 2658 of 2023 Petitioner :- Ramesh Duggal Alias Pappu Respondent :- Pt. Ram Shanker Mishra Trust Chief Office Counsel for Petitioner :- Shesh Kumar Srivastava Counsel for Respondent :- Shantanu Srivastava Hon'ble Neeraj Tiwari,J.
1. Heard Sri Shesh Kumar Srivastava, learned counsel for petitioner and Sri Shantanu Srivastava, learned counsel for respondent.
2. Present petition has been filed challenging the order dated 10.02.2023 passed by District Judge, Kanpur Nagar, by which, application 27-Ga filed under Order VI Rule 17 of CPC in S.C.C. Revision No. 187 of 2022 was rejected.
3. Since, only legal question is involved in the present petition, therefore, with the consent of parties without inviting for affidavits, petition is being decided at the admission stage itself.
4. Brief facts of the case are as follows. The SCC Suit No. 149 of 2015 was filed for ejectment and recovery of damages under Section 26 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as ''Act, 1887') in which written statement was filed by the petitioner-defendant denying the allegations, but accepting the respondent-plaintiff as landlord. The said suit was ex parte decreed vide order dated 08.07.2022. Against the order dated 08.07.2022, petitioner-defendant has filed Revision under Section 25 of Act, 1887 before District Judge, Kanpur Nagar. It is undisputed that petitioner-defendant was a tenant of Pt. Ram Shanker Mishra Trust established by a duly registered trust deed. Case of petitioner-defendant is that on 07.12.20217, trust deed was filed by respondent-plaintiff, then petitioner-defendant could know that Sri Uma Shanker Mishra respondent-plaintiff is a forge trustee and fraudulently presenting himself as Sarvarakaar collecting amount of rent also. After knowing this fact, petitioner-defendant has filed application 27-Ga dated 15.12.2022 under Order VI Rule 17 of CPC for amendment in written statement.
5. Learned counsel for petitioner submitted that under the provisions of Order VI Rule 17 of Civil Procedure Code, 1908 (hereinafter referred to as ''CPC'), amendment may be sought at any stage of proceeding and it is required on the part of Court concerned to decide the application on merits.
6. He further submitted that in written statement, under bonafide belief, petitioner has accepted the respondent-plaintiff as landlord and he could know about the trust deed only on 07.12.2017, which transpires that respondent is a forged trustee presenting himself as Sarvarakaar and not a landlord. Thereafter in the year 2022, petitioner-defendant has moved application 27-Ga under Order VI Rule 17 of CPC for amendment in his written statement. It is further submitted that once petitioner-defendant has disputed the ownership/landlordship, it is required on the part of Revisional Court to allow the application and invite objection upon the same, thereafter proceed to decide the case on merits.
7. He next submitted that once respondent-plaintiff is not a landlord, the suit filed by him is not maintainable and it's a legal issue goes to the roots of the controversy, therefore, it is required on the part of Revisional Court to allow the amendment application even at the revisional stage.
8. It is further submitted that in light of settled provisions of law, Revisional Court must have been very liberal while considering amendment application under Order VI Rule 17 of CPC for the purpose of substantial justice. In support of his contention, he has placed reliance upon the judgments of Apex Court as well as this Court in the matters of Surendra Kumar Sharma vs. Makhan Singh; 2009 (3) ARC 427, B.K.N. Pillai vs. P. Pillai; Civil Appeal No. 7222-23 of 1999 (arising out of S.L.P. (Civil) No. 14540-14541 of 1999) decided on December 13, 1999, Ganpatlal Gupta and others vs. Additional District Judge, Deoria and others; Civil Misc. Writ Petition No. 50175 of 1999 decided on 21.03.2003 and Kamal Regmi Sharma and others vs. Nepal Bank Limited and others (Civil Revision No. 511 of 1986 decided on 14.10.1986.
9. Sri Shantanu Srivastava, learned counsel for respondent submitted that it is a summary proceeding and after final disposal of suit, no such amendment may be allowed. He further pointed out that Order VI Rule 17 of CPC clearly provides 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. The trust deed was very well in existence since the the date of tenancy as claimed by the petitioner-defendant and it is required on his part to aver the same in his written statement, if it is in his favour. Even as per case of petitioner-defendant itself, he could know about the trust deed only on 07.12.2017, he must have file application under Order VI Rule 17 of CPC immediately thereafter and not after final disposal of the suit on 08.07.2022 and on 15.12.2022 during pendency of SCC revision under the advice of counsel. It clearly transpires that conditions of due diligence have not been fulfilled and only purpose to file application is to delay the proceeding. He further submitted that filing of amendment application at such belated stage does not meet the conditions of due diligence as provided in Order VI Rule 17 of CPC, therefore, he may not file amendment application before the Revisional Court at a very belated stage. In support of his contention, he has placed reliance upon the judgments of this Court passed in Hari Shanker and 5 ors. vs. Bhagwati Prasad Mishra; 2014 0 Supreme (All) 3127, decided on 30.10.2014 and Hari Narayan v. Shanti Devi; 2019 SCC OnLine All 2380, decided on 28.05.2019.
10. He next submitted that once, on the basis of admission, any right accrued in favour of plaintiff cannot be taken away by the way of filing amendment application after judgment and decree. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Raj Kumar Mulani vs. Ramesh Kumar Hemrajani; 2019 0 Supreme(All) 1604, decided on 19.09.2019.
11. He also submitted that against the ex parte decree, petitioner has filed application under Order IX Rule 13 of CPC, which was dismissed by S.C.C Court, Kanpur Nagar vide order dated 10.01.2023. He has produced the certified copy of order dated 10.01.2023, which is taken on record.
12. Being confronted by the Court, learned counsel for petitioner could not explain the delay for filing of amendment application after more than five years from the date of knowledge of sale deed as per his own admission. He also could not demonstrate from the trust deed or from any record as to why respondent-plaintiff is not the Sarvarakaar and cannot maintain the suit. He only submitted that onus is upon the plaintiff-respondent to prove his ownership.
13. I have considered the submissions advanced by counsel for parties and perused the records as well as judgments cited above.
14. Above noted facts are not disputed between the parties.
15. Basic issue before this Court is about the interpretation of Order VI Rule 17 of CPC, which is quoted here:_ "[17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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.]"
16. From the perusal of Order VI Rule 17 of CPC, it is clear that amendment application may be allowed before commencement of trial, but in case, Court is of the view that in spite of due diligence, party could not have raised the matter before the commencement of trial, application may be allowed. In the present case, it is required on the part of Court to see about the due diligence made by petitioner-defendant to file amendment application based upon date of knowledge of trust deed and also the effect of amendment upon the judgment and decree of suit, if allowed.
17. First of all, I am coming to the question of due diligence made by the petitioner. It is undisputed that trust deed was very well in existence on the date of filing of suit as well as written statement, therefore, it is required on the part of petitioner-defendant to made averment about the same, while filing written statement and also place before the Court as evidence. Here in written statement, it has been accepted by the petitioner-defendant that respondent-plaintiff is landlord and even as per his own case, having knowledge of trust deed from 07.12.2017, he has not filed any application under Order VI Rule 17 of CPC for about five years. The suit was decided vide order dated 08.07.2022 and thereafter, revision was also filed and in revision too, no such ground has been taken, but at a very belated stage, under the advice of counsel, application 27-Ga has been filed under Order VI Rule 17 CPC.
18. The conduct of petitioner-defendant clearly shows that trust deed was very well present from the date of filing of written statement and as per admission of petitioner-defendant, it was in his knowledge from 07.12.2017, but he has never filed any application under Order VI Rule 17 of CPC, which shows that there is absolute lack of due diligence. In fact contrary to that, having knowledge of each and every facts, petitioner-defendant has never raised before the court by the way of written statement or application under Order VI Rule 17 of CPC and once the suit has been decided against him, with an ulterior motive, an application has been filed. Therefore, this Court is of the view that such amendment application does not fulfil the condition of Order VI Rule 17 of CPC as it is having absolute lack of due diligence rather it is a case of negligence as petitioner-defendant was sleeping over the matter for a long time without any explanation.
19. In the judgments so relied upon by learned counsel for petitioner-defendant, Courts have only considered as to whether at a very belated stage, amendment may be allowed or not and Courts have given findings that for the purpose of substantive justice, delay cannot be a ground for rejection.
20. This case is not a case of delay as the trust deed was well in existence from the date of filing of written statement and as per admission of petitioner-defendant also, it is in his knowledge from 07.12.2017, but amendment application has not been filed. In fact, it is a case where the conditions of due diligence provided under Order VI Rule 17 of CPC has not been fulfilled and without any justification, amendment application has been filed at revisional stage after final judgment and order dated 08.07.2022 passed in suit. Therefore, judgments so relied upon by learned counsel for petitioner-defendant shall not come in the rescue of petitioner-defendant as it is case of negligence and not of bona fide delay.
21. I have perused the judgment passed in Hari Shanker (Supra), in which, Court has considered about the concept of ''due diligence'. Relevant paragraphs are quoted below:-
"9. Supreme Court in Modi Spinning & Weaving Mills Company Ltd. Vs. Ladha Ram, AIR 1977 SC 680, held that the defendants cannot be allowed to change completely the case made in paras 25 and 26 of the written statement and substitute an entirely different and new case. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. Same view has been taken in Heera Lal Vs. Kalyan Mal, (1998) 1 SCC 278, Gautam Swarup Vs. Leela Jetly, (2008) 7 SCC 85, Sumesh Singh Vs. Phoolan Devi, (2009) 12 SCC 689 and Vishwanath Agrawal Vs. Savitri Bera, (2009) 15 SCC 693.
10. In B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712, Supreme Court held that the principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a 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 injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.
Thus in view of the authoritative pronouncements of Supreme Court, the case law relied upon by the counsel for the petitioners cannot be followed.
11. Now the next question arises as to whether the proposed amendment can be allowed in view of Proviso to Order VI Rule 17 C.P.C. The defendant alleged that the fact relating to the proposed amendment was noticed at the time of preparation of the appeal for final arguments on 03.08.2014.
12. Supreme Court in Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344, held that Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.
13. The phrase "due diligence" came for consideration before Supreme Court in Chander Kanta Bansal v. Rajinder Singh Anand, AIR 2008 SC 2234, in which it has been held that the words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.
14. Supreme Court again in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, held that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit. In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error. Similar view was taken in Vidyabai Vs. Padma Latha, (2009) 2 SCC 409, Sushil Kumar Jain Vs. Manoj Kumar, (2009) 14 SCC 38 and Abdul Rehman Vs. Mohd. Ruldu, (2012) 11 SCC 341.
15. The written statement was drafted by an advocate after reading the plaint. After legal advice, it cannot be said that in exercise of "due diligence" the fact sought to be brought in the pleading by way of amendment was not in the knowledge of the defendant. A distinction has to be drawn between 'due diligence' and 'negligence'. The case of the defendants falls in the category of 'negligence' and not 'due diligence'. Trial Court rightly rejected the amendment application, as Proviso to Order VI Rule 17 C.P.C., now castes a rider on the power of the Court in allowing amendment application. "
22. This issue was again considered by this Court in Hari Narayan (Supra). Relevant paragraphs are quoted below:-
"3. Contention of the learned counsel for the revisionist is that under Order VI Rule 17 the court may at any stage of proceedings allow the amendment of pleadings so as to determine the real question in controversy between the parties, and the trial court has rejected the amendment application without recording any finding to arrive at a conclusion that in spite of due diligence the defendant could not have sought the amendment before the commencement of the trial.
7. The proviso to Rule 17 under Order VI, as inserted by the Code of Civil Procedure (Amendment) Act, 2002, however, restricts and curtails the power of the court to allow amendment of pleadings by enacting that no application for amendment is to 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 the trial.
8. The proviso to Rule 17, as per the Amendment Act, 2002, has introduced the "due diligence" test, which requires that the court must be satisfied that in spite of "due diligence" the party could not discover the ground pleaded in the amendment. The term "due diligence" has been specifically used so as to provide a test for determining whether to exercise the discretion in situations where amendment is being sought after commencement of the trial.
9. The provisions contained under Order VI Rule 17 proviso as introduced in the year 2002 came up for consideration in the case of J. Samuel Vs. Gattu Mahesh & Ors.2 wherein the principles relating to allowing amendments under Order VI Rule 17 were reiterated and the object of the proviso and the meaning and significance of "due diligence" of the parties seeking amendment has also been stated. The observations made in the judgment in this regard as follows:-
"18. 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:
"... 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."
19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.
20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.
x x x x x
23. ...The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [Vide Aniglase Yohannan v. Ramlatha [(2005) 7 SCC 534], Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. [(2006) 12 SCC 1], Chander Kanta Bansal v. Rajinder Singh Anand [(2008) 5 SCC 117], Rajkumar Gurawara v. S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364], Vidyabai v. Padmalatha [(2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563] and Man Kaur v. Hartar Singh Sangha [(2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239]."
10. Reference may also be had to the judgment in the case of Revajeetu Builders and Developers Vs. Narayanaswami and Sons & Ors.1 wherein some of the important factors which may be kept in mind while dealing with an application filed under Order VI Rule 17 have been enumerated in the following terms:-
"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
11. In a recent judgment in the case of M. Ravanna Vs. Anjanamma3, it has been held that after commencement of trial amendment of pleadings is not permissible except under conditions stated in the proviso and the burden is on the person seeking the amendment after commencement of trial to show "due diligence" on his part as contemplated under the proviso. The relevant observations in the judgment are as follows:-
"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."
12. In the case at hand, the court below upon due consideration of the facts of the case has come to the conclusion that the amendment which was being sought was not imperative for determining the real question in controversy between the parties, and also that the same was barred by the proviso to Order VI Rule 17 CPC which curtails the discretion to allow amendment of pleadings after the trial has commenced, and introduces the "due diligence" test in terms whereof the burden is on the person seeking the amendment after commencement of trial to show that in spite of "due diligence" such an amendment could not have been sought earlier, and as such the order passed by the trial court cannot be faulted with. "
23. The controversy involved in the present case is squarely covered with judgements of Hari Shanker (Supra) and Hari Narayan (Supra). Therefore, considering all facts and circumstances of the case, this Court is of the view that due diligence is a very important factor while allowing amendment application under Order VI Rule 17 of CPC and applicant has to prove that he has made all possible efforts, but even after that, he could not know about the documents or facts which are most relevant to decide the controversy. In case documents or facts are available or within the knowledge of petitioner, at any stage, if any application is filed, same cannot be allowed as it would not fulfil the para meter of due diligence as provided in Order VI Rule 17 of CPC.
24. So far as second issue is as to whether allowing of such amendment application would adversely affect the right of plaintiff-respondent or not.
25. This issue was also subject matter of Raj Kumar Mulani (Supra). Relevant paragraph Nos. 9 to 12 are quoted below:-
"9. The judgment of two Judge Bench of Hon'ble Supreme Court in Sushil Kumar Jain (supra) is based on another judgment of Hon'ble Supreme Court in Panchdeo Narain Srivastava Vs. Jyoti Sahay, 1984 Supp SCC 594 in which an observation has been made that an admission made by parties may be withdrawn. The relevant paragraph of the judgment of the Hon'ble Supreme Court in the case of Sushil Kumar Jain (supra) relied by learned counsel for the defendant-tenant/petitioner, is reproduced below:-
"9. That apart, a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence.
10. At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action (See Baldev Singh & Ors. vs. Manohar Singh & Anr. AIR 2006 SC 2832).
12. Keeping these principles in mind, let us now take up the question raised before us by the learned counsel for the parties. As stated herein earlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Panchdeo Narain Srivastava Vs. K. Jyoti Sahay AIR 1983 SC 462, while considering this issue, held that the admission made by a party may be withdrawn or may be explained. It was observed in paragraph 3 of the said decision as follows:-
"An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment, an admission of fact cannot be withdrawn.........."
10. The judgments of the Hon'ble Supreme Court in Panchdeo Narain Srivastava (supra) and Sushil Kumar Jain (supra) have been considered by a three Judges Bench of Hon'ble Supreme Court in paragraph nos.16 &17 of the judgment in Ram Niranjan Kajaria (supra) and both the aforesaid judgments have been over ruled and it has been held "that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment". Paragraph nos. 19, 20, 22, & 23 of the judgment in Ram Niranjan Kajaria (supra) are reproduced below:-
"19. In Gautam Sarup v. Leela Jetly and others (2008) 7 SCC 85,after considering Panchdeo Narain Srivastava (supra) and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. (supra) and several other decisions dealing with the amendment on withdrawal of admissions in the pleadings, it was held at Paragraph-28 as follows:
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
20. On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others(2009) 10 SCC 84 ,after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows: ( Revajeetu Builders case (2009) 10 SCC 84, SCC p. 102) "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others (1974) 1 SCC 242 .To quote Paragraph-27: (SCC pp. 251-52) "27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
23. We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava 1984 Supp SCC 594 (supra), does not reflect the correct legal position and it is overruled."
(Emphasis supplied by me)
11. From the legal position as extracted above it is clear that the submission of the petitioner based on the over ruled judgment of Hon'ble Supreme Court in the case of Sushil Kumar Jain (supra), deserves to be rejected.
12. In view of the above discussion, I hold that a categorical admission made in the pleadings can not be permitted to be withdrawn by way of an amendment. The Amendment Application filed by the defendant-petitioner was not bonafide. The Judge Small Cause Court has lawfully rejected the Amendment Application by impugned order dated 09.05.2019 and the Revision filed by the petitioner was lawfully dismissed by order dated 11.07.2019, passed by the Officiating District Judge/Additional District Judge, Court No.01, Kanpur Nagar. "
26. Very same issue is also subject matter of this petition.
27. No doubt, the suit is allowed based upon the admission of petitioner-defendant about tenant landlord relationship with respondent-plaintiff and once such amendment application is allowed at a very belated stage without any proper reason, would certainly deprive the rights of plaintiff-respondent, which accrued in his favour vide judgment and order dated 08.07.2022. Law is very much settled on this point that right accrued based on admission of facts can not be taken back by the way of allowing amendment application withdrawing the admission earlier given. Therefore, on this issue too, such amendment application cannot be allowed.
28. In the light of facts as well as law discussed here-in-above, present case is the best example of negligence and not of due diligence and also withdrawal of right accrued to the petitioner in light of admission made in written statement, which cannot be permitted. Therefore, no case is made out to interfere with the impugned order dated 10.02.2023 passed by District Judge, Kanpur Nagar.
29. Writ petition lacks merit and is accordingly, dismissed.
30. No order as to costs.
Order Date :- 05.05.2023 Sartaj