Allahabad High Court
Mahendra Radio And Television, Meerut ... vs State Bank Of India on 17 May, 1988
Equivalent citations: AIR1988ALL257, AIR 1988 ALLAHABAD 257, (1988) ALL WC 1072
Author: A.P. Misra
Bench: A.P. Misra
ORDER A.P. Misra, J.
1. Defendants--applicants by means of this revision have challenged the order dated 29th January, 1987, passed by the trial court by virtue of which part of amendment to the written statement was rejected.
2. According to the applicants as also referred to in the application for amendment that later on it was found that by mistake the clause of specific denial and admission of the facts of specific defence has not been mentioned in the written statement, the written statement needs proper amendment; and the proposed amendment does not change the nature of the suit but is essential to elaborate the existing contention of the written statement. On the other hand, on behalf of plaintiff-respondent it was urged that by means of proposed amendment the defendants want to wriggle out of the admissions and therefore, rejection of the part of the proposed amendment was justified and does not call for any interference.
3. The first leg of argument in this regard by the respondent is that the earlier written statement did not specifically deny the averments made in the plaint and thus under Order VIII, Rule 5, C.P.C. it shall be treated to be admitted, and permitting now to amend the written statement would amount to permitting the defendants to resile from the admissions made in the written statement. Consequently, the defendants having admitted the revival agreement of the alleged loan within period of limitation now by proposed amendment want to deny, which would amount to withdrawal of the admission and it would prejudicially affect the plaintiff and thus refusal of the proposed amendment was justified.
4. Normally, the Court does not interfere in revision from an order of the subordinate court unless there is an error in exercise of jurisdiction by the trial court. In the present case. I find the trial court has not given any reasons for allowing part of the amendment and rejecting the other part. The impugned order merely states that certain paragraphs of the proposed amendment are allowed, while the other paragraphs are rejected. It is the duty of the Court exercising judicial functions to give some reasons while disposing of any matter. In this case, I find no reason have been given and thus it is a case where the Court exercised its jurisdiction improperly, which requires interference by this Court. One course open to this Court is to remand the case, but since the suit is of 1984 and the stage of only amendment of the written statement has reached, the remand would further delay the matter. It is for this reason, I examined the matter after hearing learned counsel for the parties at length and am disposing of the matter on the merits of the amendment sought.
5. I have perused the written statement and the proposed amendments. I find amendments in the various paragraphs which have been refused would be categorised under three heads, firstly, those paragraphs where earlier specific denial was not there but merely referred as a matter of record were sought to be amended by giving details; secondly, the execution of various documents referred to in the plaint were alleged in the proposed amendments to have been got in by the plaintiff on the blank papers; and, thirdly, the denial by the defendants-applicants by amendment that the defendant never executed any revival agreement of the alleged loan.
6. Various paragraphs under the first head which are bulk of the proposed amendment originally in the written statement merely referred as a matter of record. It is on this basis that the learned counsel for the plaintiff-respondent urged, under Order VIII, Rule 5, C.P.C. read with Section 58 of Indian Evidence Act where allegation of fact is not specifically denied in the pleading it should be taken to be admitted Order VIII, Rule 5. C.P.C. is quoted below : --
"5. Specific denial-- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to Sub-rule (1) or under Sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced."
Under this every allegation of fact if not specifically denied or not admitted in the pleading of the defendants it is deemed to be admitted except as against a person under disability. However, this admission is to be drawn on the final pleading between parties. If in a proceeding a party has not specifically denied a fact in the plaint or not even denied by necessary implication it may in a given case would be treated as admitted, but there is a proviso to this rule. According to it, a Court may require any fact so admitted to be proved otherwise than by such admission.
This clearly spells out, it is not the admission which in effect would be treated to bind the party. Even if a Court could draw an inference of admission, but in order to adjudicate effectively between the parties a discretion has been given to the Court to ask the plaintiff to give further evidence to prove his case and not only to rely upon such admission. An admission under Order VIII, Rule 5, C.P.C. is deemed to be an admission, but in effect it is not actual admission. Such an admission even does not create any vested right in favour of plaintiff as to refuse amendment to the written statement. Thus, where a defendant seeks clarification of stand in his written statement where he missed to specifically deny a fact could not be said to be such on which the Court should refuse. In view of this, the argument raised on behalf of the respondent-bank is not sustainable.
7. As aforesaid, Order VIII, Rule 5, C.P.C. is a guidance for drawing an inference of admission, but proviso to this rule clarifies that the Court may in its discretion require any fact so admitted to be proved, otherwise than by such admission. Thus, admission, spoken under Order VIII, Rule 5, is not one on which the plaintiff could rely which would bind the defendant or which creates such right in favour of the plaintiff as to refuse amendment. This does not give rise to the cause of rejecting the amendment.
8. Admission can be by positive statement, by inference of circumstances, by absence of denial. It is the first category of admission where a party specifically admits a fact, which may in a given case be utilised by the other party, that in case permitted to be withdrawn it would completely displace that party from the position of advantage which it has achieved on account of such admission. Other admissions as aforesaid even if under the law it could be said to be an admission, it is always open to a party to explain such admission and the Court permitting such amendment could not be said to be acting beyond the scope of Order VI, Rule 17, C.P.C The scope under Order VI, Rule 17, C.P.C. is that the amendment should be permitted for the purpose of determining the real question in controversy between the parties. When a party in the earlier pleading has not specifically clarified his pleadings on facts and only facts are to be deducible by inference then if the proposed amendment dispels that state of uncertainty and clarifies the stand, such ah amendment should legitimately be permitted, so that dispute between the parties could be adjudicated with precision. Thus, the contention of the learned counsel for the respondent cannot be sustained. Admittedly, the various paragraphs under the first head did not specifically give pleading with precision leaving the matter to be deduced on the basis of records. In view of this, the trial Court committed error in not allowing such amendment of these paragraphs. What has been done in the proposed amendment is wherever the words "It is a matter of record" are sought to be deleted and the words "The contents of paragraphs, are not admitted" is sought to be incorporated. This is sought to be done in consonance with the principle of Order VIII, Rule 5, so that at a later stage while finally adjudicating the issue the suit on account of lack of specific pleading the inference contrary to the case of applicant be not drawn. Thus, the refusal of the trial Court of such amendment in these various paragraphs was not justified.
9. Coming under the second head I find the proposed amendment in the various paragraphs incorporates in substance that he went on signing the document, referred to earlier, on the various blank pro forma papers. In the proposed amendment also as admitted in the original pleadings there is no denial of the execution of the document, but only that those documents were signed on blank printed forms. This could not be said to be such on which the applicant is trying to withdraw from the admissions made earlier. Even in the original written statement in paragraph 17, which has not been deleted the averment of paragraph 17 of the plaint was denied. It was further stated; "The defendants acknowledged their indebtedness only on paper............ the defendants went on signing the documents as and when desired by the plaintiff in the hope and in good faith that the plaintiff will keep its promise and cooperate with the defendants and compensate for the losses incurred due to utter negligence of their own." The later portion of paragraph 17 that the defendant went on signing the documents as and when desired by the plaintiff, if it had been clarified that the documents which are signed were on printed blank pro forma then such an amendment could not be said to be one, which ought to be refused Even a party making an admission has a right to explain his admission. In the present case, even by the proposed amendment the defendant is not denying the execution of the document, but is pleading by way of amendment that he did sign on blank printed forms. It is for the applicants, therefore, in the evidence to prove this and it would not be right for the Court to shut the evidence of the applicant in order to prove its case. It would not be a case which seeks to displace the plaintiff completely from admissions made by defendant. The tenor of even original pleading was that he executed various documents under pressure of assurance and thus it is not such a pleading on which it could be said that if the amendment is granted it either prejudices, brings surprise or displaces the plaintiff from the stage of the admission made by the defendants. Thus, I am of the view that the proposed amendment even under the second head which have been averred in the various paragraphs should not have been refused by the trial Court. In doing so, it committed jurisdictional error, which cannot be sustained.
10. The main argument raised on behalf of the respondent was, the defendant having admitted the execution of revival agreement of the alleged loan which further extended limitation to the plaintiff-bank, now permitting the defendant to deny this revival agreement would greatly prejudice the plaintiff.
11. Reliance for the purpose was made on the case Modi Spng. and Wvg. Mills Co. Ltd. v. Ladha Ram and Co., AIR 1977 SC 680. It was held in this case, where amendment seeks to displace the plaintiff completely from admissions made by the defendant in the written statement, amendment should not be allowed. In that case the trial Court rejected the application of the defendant for amendment on the ground that the defendant wanted to resile from the admissions made and by proposed amendment the repudiation of the clear: admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law. This was upheld by the Supreme Court in the aforesaid decision.
12. On the other hand, learned counsel for the applicants relied on a case Panchdeo Narain Srivastava v. Km. Jyoti Sahai, AIR 1983 SC 680, wherein it is held :
"..... 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."
It was on this basis learned counsel for the applicants urged even if the proposed amendments amount to withdrawal of admission the trial Court should have permitted these amendments.
13. Learned counsel for the respondent urged that since the decision of Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram and Co. (AIR 1977 SC 680) (supra) is 6f three Judges while the decision in the case of Panchdeo Narain Srivastava (AIR 1983 SC 680) (supra) is of two Judges this Court should follow the earlier decision. This contention cannot be accepted. This should not be the criteria on which this Court should follow and apply the law as laid down therein. As far as possible attempt should be made by the Court to find pith and by scrutinising the reasoning given in both the decisions and unless it was overruled it would not be safe to follow on the principles as urged by the learned counsel. In Javed Ahmad Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231, their Lordships of the Supreme Court held as follows : --
"The Supreme Court sits in Divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. Vide Young v. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293. It may be otherwise where a Full Bench or a Constitution Bench does so."
It is significant to refer hereto the decision in Prakash Amichand Shah v. State of Gujrat, AIR 1986 SC 468. In this case the question came up for consideration, on account of a decision in the later case on the basis of which it was argued that it amounts to overruling the earlier decision. The relevant portion is quoted below : --
".........We have gone through these decisions carefully. Before embarking upon the examination of these decisions we should bear in mind that what is under consideration is not a statute or a legislation but a decision of the Court. A decision ordinarily is a decision on the case before the Court while the, principle underlying the decision would be binding as a precedence in a case which comes up for decision subsequently. Hence, while applying the decision to a later case, the Court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation.
.......An inappropriate purpose for which a precedent is used at a later date does not take away its binding character as a precedent. In such cases there is good reason to disregard the later decision. Such occasions in judicial history are not rare. The history or the law relating to the right of labourers to strike in a factory is one such instance."
14. Coming back to the decision of Panchdeo Narain Srivastav (AIR 1983 SC 680) (Supra) it is clear this decision has not overruled the decision of M/s. Modi Spg. and Wvg. Mills Ltd. (AIR 1977 SC 680) (Supra). On the contrary it was recorded : --
"This appeal neither calls for an elaborate judgment nor a detailed discussion of the point involved in the appeal. We do not propose to give exhaustive reasons in support of our decision for in our opinion decisions on the subject are legion and we consider it unnecessary to refer to them in details."
In Panchdeo Narain Srivastava (supra) case the only amendment sought was that earlier the plaintiff described himself as the son of uterine brother of Rama Shanker Prasad, and by the proposed amendment the word "uterine" was sought to be deleted. It is in this context the Supreme Court said that an admission made by a party may be withdrawn. By means of amendment the plaintiff still continues to be described as the brother of Ram Shanker Prasad but only sought deletion of the word "uterine" before "brother". Even if plaintiff earlier admitted himself to be the uterine brother such admission could not be such if later deleted would deprive the plaintiff of the valuable right accrued to him as was held in M/s. Modi Spg. and. Wvg. Mills Co. Ltd. (Supra). Thus, in effect, there is no conflict in the two decisions of the Supreme Court. The later decision of Panchdeo Narain Srivastava (supra) neither overruled the earlier decision, nor laid down any principle contrary to the said decision and the principles laid down in the earlier decision still continues to be the good law as a precedent which is binding on this Court.
15. The pith and substance of the principles laid down in the aforesaid two decisions of the Supreme Court is that even by means of amendment an admission could be permitted to be withdrawn in a given case if admission is not one which deprives the plaintiff of the valuable right accrued to him. Thus, it is only those admissions where valuable right has accrued to the plaintiff or an amendment which introduces a new case and seeks to displace the plaintiff completely from admissions made by the defendant the amendment should not be permitted. However, where admissions are not such then permitting amendment on the facts and circumstances of case could not be such which could give rise to the other side a cause on which it should be refused.
16. Coming to the present case under the third head the proposed amendment to paragraph 18 of the written statement to the effect "the defendants never executed any revival agreement of the alleged loan" is one if permitted it would displace the plaintiff-bank completely from admissions made by the defendants and it will deprive the plaintiff of the valuable right which has accrued to it. But for this acknowledgement made earlier part of the claim might become time-barred. Thus, on the perusal of the proposed amendments referred to in various paragraphs which were refused by the trial Court I find except for the amendment "the defendants never executed any revival agreement of the alleged loan" referred to in paragraph 17 of the proposed amendment by virtue of which the said words are sought to be introduced in paragraph 18 of the written statement, rest of the proposed amendment, as aforesaid, are not such which the trial Court should have refused. However, the trial Court rightly refused the aforesaid amendment to paragraph 18 of the written statement.
17. In the present case, as aforesaid, the trial Court has not given any reason for acceptance of some of paragraphs of the proposed amendment or for refusal of other paragraphs. I find, that some of the paragraphs alleged were identical to those paragraphs which were refused. Thus, the trial Court exercised its jurisdiction illegally and improperly without giving any reason and; therefore, the same cannot be sustained.
18. This revision is partly allowed The impugned order dated 29th January, 1987, passed by the trial Court to the extent it refused amendment to the remaining paragraphs except proposed amendment to paragraph 18 of the written statement by virtue of which "the defendants never executed any revival agreement of the alleged loan" was sought to be introduced is set aside and the same stands allowed. However, refusal to amend paragraph 18 as aforesaid was rightly refused. In view of the divided success the parties shall bear their own costs.