Rajasthan High Court - Jaipur
State Of Rajasthan vs Ishwar Dass And Ors. on 1 September, 1995
Equivalent citations: 1996(3)WLC349, 1995(2)WLN595
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. The instant revision petition has been filed under Section 115 CPC against the order dated 19.2.94 passed by the learned Munsif and Judicial Magistrate, Abu Road in Original Civil Suit No. 251 of 1993 and Civil Misc. petition No. 32 of 1993 Ishwar Dass etc. v. Bhikh Singh etc. rejecting an application moved on behalf of the revisionist Under Order VI, Rule 17, CPC.
2. Aggrieved against the order dated 19.2.94 refusing an amendment application moved by the defendant-revisionist Under Order VI, Rule 17, CPC, the revisionist has come in revision before this Court.
3. Learned Counsel Mr. Prakash Tatia appearing on behalf of the defendant-revisionist urged before me that an admission made by a party in its written statement can be withdrawn or may be explained away. Thus, according to him the learned trial court has committed a jurisdictional error in refusing the amendment application Under Order VI Rule 17, CPC. According to Mr. Tatia, it cannot be said that by amendment, an admission of fact cannot be withdrawn. In support of his aforesaid contention, learned Counsel Mr. Tatia placed reliance on a decision rendered by the Apex Court in a case of Panchdeo Narain Srivastava v. Km Jyoti Sahay and Anr. .
4. I have given my thoughtful consideration to the aforesaid contention raised on behalf of the revisionist's Counsel Mr. Tatia. It is true that alternative inconsistent pleas can be taken in pleadings but effect of substitution sought in the present case, is not making inconsistent an alternative plea but by way of amendment, the defendant-revisionist is seeking to displace the plaintiff-opposite-party, completely from the admission made by the defendant-revisionist in his written statement and if such amendments are allowed, the plaintiff-opposite-party will be prejudiced by being denied the opportunity of extracting the admission from the defendant-revisionist.
5. In abundant caution, I have examined the present case in the light of Order VI Rule 17 as well as Order VIII Rule 9, CPC. A conjoint reading of aforesaid two Rules reveal that while Under Order VI, Rule 17, CPC without any discrimination, the plaintiffs and defendants have been allowed to amend their pleas in such a 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 but a close scrutiny of Order VIII Rule 9, CPC reveals that no pleading subsequent to the written statement of a defendant other than by way of defence to a set off or counter claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, although the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
6. It. appears that there are anomalies and creases in Order VI Rule 17, CPC and Order VIII Rule 9, CPC which require to be iron out without altering the material of which both these orders are woven. All the provisions of Civil Procedure Code are grounded on the principles of natural justice and fair play to facilitate justice and further its ends not to defeat it. It is true that if Government is non-suited, no person is individually affect but in ultimate analysis, it is public interest, which suffers. A moot question would arise as to whether even if Government makes out a case where public interest is shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents or where the officer or officers are clearly shown at cross purposes with the interest of the Government yet such admission made by the Government in its written statement can not be allowed to be withdrawn or to be explained away ? In the present case, acts of fraud or bad faith on the part of Governmental authorities are neither alleged nor argued by the learned Counsel Mr. Prakash Tatia, appearing on behalf of the State, hence the question is left open to be decided in an appropriate case.
7. At the time of dictation of judgment, the attention of the learned Counsel Mr. Tatia was drawn towards the mandatory provisions contained Under Order VI Rule 17 CPC as well as the provisions contained Under Order VIII Rule 9, CPC and in reply, he urged before me that according to these provisions with the leave of the Court, he can be allowed to amend the written statement upto any extent including an admission made by a party in its written statement can be withdrawn or may be explained away.
8. The aforesaid argument of the learned Counsel for the revisionist is not tenable in view of a decision taken by the Apex Court in the case of M/S Modi Spinning and Weaving Mills Company Ltd. and Ors. v. Ladha Ram and Company , which reads thus:
It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 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. The High Court rightly rejected the application for amendment and agreed with the trial court.
9. Thus, in the present case, there are two decisions rendered by the Apex Court staring at each other. In such a situation, the basic question would be which of the two decisions rendered by the Apex Court should be followed by this Court which can be said to be in accordance with the rules of precedent coming from time immemorable and can also be said to be in accordance with the mandatory provisions envisaged under Article 141 of the Constitution of India.
10. Learned Counsel appearing for the defendant-revisionist candidly admitted that in such a situation, according to the rules of precedent and also to keep decision of this case within the ambit of the mandatory provisions contained under Article 141 of the Constitution of India, in letter and spirit, the decision given by a Larger Bench of the Apex Court may be followed.
11. In view of the aforesaid facts and circumstances, I have no hesitation to follow the ratio decidendi of the decision rendered in the case of M/S Modi Spinning and Weaving Mills Company Ltd. (supra) which is a decision rendered by Hon'ble Judges of the Supreme Court.
12. Taking into account the ratio decidendi of the case of M/S Modi Spinning and Weaving Mills Company Ltd. (supra), I hold that the defendant-revisionist has no justification to introduce by way of amendment entirely different new case seeking a relief Under Order VI Rule 17, CPC to dis-place the plaintiff-opposite-party completely from admissions made by the defendant-revisionist in his written statement causing prejudice to the plaintiff-opposite party in the present case.
13. A close scrutiny of the order impugned passed by learned trial court rejecting the application Under Order VI Rule 17, CPC reveals that it has rejected the amendment application on the ground that the defendant-revisionist wanted to resile from his admission made in his written statement and if he is permitted to do so, the plaintiff-opposite-party would be deprived of a valuable right accrued to him which would amount serious prejudice to him ln arriving at the aforesaid conclusion, the learned trial court has placed reliance on the case of M/S Modi Spinning and Weaving Mills Company Ltd. (supra).
14.The aforesaid conclusions arrived at by the learned trial court are based on analytical discussion of the material on record with which I am at one.
15. Since conclusions arrived at by the learned trial court are based on the majority decision rendered by the Apex Court in the case of M/S Modi Spinning and Weaving Mills Company Ltd. (supra), hence such conclusions do not require interference in revision.
16. As a result of the aforesaid discussion, the instant revision petition is hereby dismissed in limine.