Himachal Pradesh High Court
Dilawar vs Des Raj & Another on 9 March, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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C.R.No. 63 of 2005 Reserved on: 27.2.2015 Decided on: 9.3.2015 ______________________________________________________ Dilawar ...Petitioner Versus Des Raj & another ...Respondents.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. K.D. Sood, Senior Advocate with Mr. Sanjeev Sood, Advocate.
For the Respondents : Mr. Pushpender Verma, Advocate vice Mr. Kulbhushan Khajuria, Advocate.
____________________________________________________________ Justice Rajiv Sharma, Judge.
This petition is instituted against the order dated 3.5.2005 rendered by Additional District Judge, Ghumarwin, District Bilaspur in CA No.244/13 of 2004/1999.
2. "Key facts" necessary for the adjudication of this petitioner are that the predecessor-in-interest of respondents-
plaintiffs, namely Smt. Devku Devi has instituted a suit for declaration and permanent prohibitory injunction and for 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 2 possession against the petitioner-defendant (hereinafter referred to as the "defendant" for convenience sake) in the .
Court of Senior Sub Judge, Bilaspur bearing case No. 397-1 of 1995. The suit was decreed by the learned Senior Sub Judge, Bilaspur on 16.9.1999. Defendant filed an appeal before the learned Additional District Judge against the judgment and decree dated 16.9.1999. Smt. Devku died on 8.8.2002 and the plaintiffs were brought on record after the death of Devku Devi.
3. Defendant filed an application under Order 6 Rule 17 of the Code of Civil Procedure seeking the following amendment in the written statement:
"That the Devku did never execute any will in favour of the respondent. She was not having sound disposing mind and did not enjoy cognitive facilities to execute any such documents.
The respondents has not sought any amendment in the plaint to claim any right title and interest in the estate of Smt. Devku."
Defendant has also filed amended written statement along with application.
4. The application was contested by the plaintiffs.
According to the reply, Smt. Devku has executed a legal and valid "will" on 31.5.2000 in their favour. The "Will" was registered in the office of Sub Registrar. The will was executed by Devku in sound state of mind. The application has been filed to prolong the litigation. The amendment, thus, as sought ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 3 was not necessary. The learned Additional District Judge dismissed the application on 3.5.2005.
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5. It is evident from the material brought on record that the plaintiffs are claiming themselves to be owners in possession of the suit land on the basis of "will" dated 31.5.2000 executed by Smt. Devku in their favour. It was duly registered. Case of the defendant was that the land measuring 1-3 bighas was in his possession, as tenant under Devku. She has gifted the entire land in his favour on 17.7.1964 by way of gift. Mutation No. 364 was attested in his favour. He remained owner in possession of the suit property. Defendant has challenged the execution of "will" in favour of the plaintiffs. The Additional District Judge ought to have allowed the application preferred under Order 6 Rule 17 Code of Civil Procedure in order to minimise the litigation. The Additional District Judge has not taken into consideration the well settled principles governing the amendment. It is settled law by now that the Courts should be liberal while granting amendments to written statements so as to decide the real dispute/issues between the parties without causing prejudice to the other side.
6. Their Lordships of the Hon'ble Supreme Court in Estralla Rubber vs. Dass Estate (P) Ltd. (2001) 8 SCC 97 have held that where purpose of proposed amendment is to elaborate the defence and take additional pleas in support of ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 4 the case, the amendment should be allowed. Their Lordships have held as under:
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"6. We have considered the submissions made on behalf of either side. The High Court set aside the order passed by the learned District Judge stating that the proposed amendment will have the effect of displacing the plaintiff from admission made by the defendant in its petition filed under Sections 17(2) and 17(2A) of the Act and that such admission could not be permitted to be withdrawn. We have perused the relevant records including the original application and the proposed amendments. We are not able to see any admission made by the defendant as such, which was sought to be withdrawn. By the proposed amendment the defendant wanted to say that Ala Mohan Das was a permissive occupier instead of owner. The further amendment sought was based on the entries made in the revenue records. It is not shown how the proposed amendment prejudiced the case of the plaintiff. It is also not the case of the plaintiff that any accrued right to it was tried to be taken away by the proposed amendment. The proposed amendment is to elaborate the defence and to take additional plea in support of its case. Assuming that there was some admission indirectly, it is open to the defendant to explain the same. Looking to the proposed amendments it is clear that they are required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings.
The High Court also found fault with the defendant on the ground that there was delay of three years in seeking amendment to introduce new defence. From the records it cannot be said that any new defence was sought to be introduced. Even otherwise, it was open for the defendant to take alternate or additional defence. Merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to the plaintiff so as to take away any accrued right, the application could not be rejected. At any rate, it cannot be said that allowing amendment caused irretrievable prejudice to the plaintiff. Further, the plaintiff can file his reply to the amended written ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 5 statement and fight the case on merits. The impugned order passed by the High Court exercising jurisdiction under Article 227 of the Constitution to set aside the order passed by the .
learned District Judge in revision under Section I I 5A of the CPC allowing the amendment application filed by the defendant, is patently erroneous and unsustainable. In the impugned order the High Court observed that the order of the learned District Judge was apparently wrong but in our view it is otherwise."
7. In the instant case also, additional plea has been taken by the defendant, to challenge the "will" executed by Smt. Devku.
8. Their Lordships of the Hon'ble Supreme Court in Rajesh Kumar Aggarwal and others vs. K.K. Modi and others, (2006) 4 SCC 385 have held that the courts should allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. Their Lordships have held as under:
"15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 6 decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the .
contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub- serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
20. We shall now consider the proposed amendment and to see whether it introduces a totally different, new and inconsistent case as observed by the Hon'ble Judges of the Division Bench and as to whether the application does not appear to have been made in good faith. We have already noticed the prayer in the plaint and the application for amendment. In our view, the amendment sought was necessary for the purpose of determining the real controversy between the parties as the beneficiaries of the Trust. It was alleged that respondent No.1 is not only in exclusive possession of 57,942 shares of GPI and the dividend received on the said shares but has also been and is still exercising voting rights with regard to these shares and that he has used the Trust to strengthen his control over GPI. Therefore, the proposed amendment was sought in the interest of the beneficiaries and to sell the shares and proceeds invested in Government bonds and or securities. A reading of the entire plaint and the prayer made thereunder and the proposed amendment would go to show that there was no question of any inconsistency with the case originally made out in the plaint. The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting malafide. There are a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 7 the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to .
impede the dispensation of justice. The amendments sought for by the appellants has become necessary in view of the facts that the appellants being the beneficiaries of the Trust are not deriving any benefit from the creation of the Trust since 1991- 92 and that if the shares are sold and then invested in Government bonds/securities the investment would yield a minimum return of 10-12%. It was alleged by the appellants that respondent No.1 is opposing the sale in view of the fact that if the said shares are sold after the suit is decreed in favour of the appellants, he will be the loser and, therefore, it is solely on account of the attitude on the part of respondent No.1 that the appellants have constrained to seek relief against the same."
9. The Additional District Judge in this case has come to a wrong conclusion that the nature of the defence would change. Rather, it is additional plea, which has been raised by the defendant after acquiring the knowledge that the plaintiffs were claiming themselves to be owners in possession of the suit land on the basis of will executed by Smt. Devku.
10. Their Lordships of the Hon'ble Supreme Court in Baldev Singh and others vs. Manohar Singh and another, (2006) 6 SCC 498 have explained the difference of amendment of written statement vis-à-vis amendment of plaint. Their Lordships have further held that a wide power and unfettered discretion has been conferred on the court to allow amendment of pleadings, in such manner and on such terms as it appears ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 8 to court to be just and proper. Their Lordships have held as under:
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9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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. A bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts.
The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pladings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later.
14. As noted herein earlier, the case set up by the plaintiff/respondent No.1 was that his parents had no money to ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 9 purchase the suit property and it was the plaintiff/respondent No.1 who paid the consideration money. In the written statement, this fact was denied and further it was asserted in .
the written statement that the suit property was in fact purchased by their parents and they had sufficient income of their own. In the application for amendment of written statement it was stated that the plaintiff/respondent No.1 did not have any income to pay the consideration money of the suit property and in fact the parents of the plaintiff/respondent No.1 had sufficient income to pay the sale price. It was only pointed out in the application for amendment that after the death of their parents, the suit property was mutated in the joint names of the plaintiff/respondent No.1 and the defendants in equal shares. Therefore, the question whether certain admissions made in the written statement were sought to be withdrawn is concerned, we find, as noted herein earlier, there was no admission in the written statement from which it could be said that by filing an application for amendment of the written statement, the appellants had sought to withdraw such admission. It is true in the original written statement, a statement has been made that it is the defendant No.1/appellant No.1 is the owner and in continuous possession of the suit property but in our view, the powers of the Court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. That apart, in our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the Trial Court had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the defendants/appellants in their written statement. That apart, in the case of Estralla Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC 97], this Court held that even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 10 written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious .
prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right.
15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it 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. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 11 written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. & Anr. 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."
11. Their Lordships of the Hon'ble Supreme Court in State of A.P. and others vs. Pioneer Builders, A.P. (2006) 12 SCC 119 have held that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. Their Lordships have further held that unless serious injustice or irreparable loss is likely to be caused to the other side, the court should adopt liberal approach and not a hyper-technical approach. Their Lordships have held as under:
"21. Principles governing amendment of pleadings are well- settled. Order VI Rule 17 C.P.C. deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings 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 questions in controversy between the parties. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well- settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the Court should adopt liberal ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 12 approach and not a hyper- technical approach particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings .
liberally is to avoid multiplicity of proceedings (See: L.J. Leach & Co. Ltd. & Anr. Vs. M/s. Jardine Skinner & Co. , Smt. Ganga Bai Vs. Vijay Kumar & Ors. and B.K. Narayana Pillai Vs. Parmeswaran Pillai & Anr. Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya Vs. Maung Mo Hnaung , succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings:
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is rtherefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."
23. Incidentally, the order passed by the subordinate Judge allowing the amendment application has not been filed but learned counsel appearing for both the parties have stated before us that it was identical to the one passed in the Application under Section 80(2) C.P.C. (I.A. No. 3 of 1993), extracted above. Before the High Court it was argued on behalf of the State and so before us that since the amendment prayed for had the effect of changing the nature and character of the suit, it could not be allowed. However, we find that though the submission has been noted but somehow in the impugned judgment the High Court has altogether omitted to deal with the aspect of amendment of the plaint and straight away proceeded to decide the claims on merits. Initially filed as a petition under Sections 8 and 20 of the Arbitration Act, by means of an application under Order VI Rule 17 C.P.C. it was sought to be converted into a civil suit. It is pleaded before us ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 13 that the original petition was also, in fact, in the nature of a civil suit as the court fee paid was much more than what was required to be paid on a petition under the Arbitration Act. We .
are of the considered view that in the absence of any finding by the High Court on this aspect of the matter, it will not be proper for us to comment on the validity of the order passed by the subordinate Judge on contractor's application seeking amendment of the plaint/petition, particularly when, as noted above, the High Court, in its order dated 13.11.1992 had observed that in the absence of any claim for a specified amount, the suit, originally filed by the contractor, was not maintainable. We feel that certain factual aspects may also have to be gone into by the High Court in the First Appeals filed by the State, wherein orders passed by the subordinate Judge on 2.2.1993 (in I.A. Nos. 1 and 3/1993) had been challenged.
Under these circumstances, we deem it just and proper to remand the matter back to the High Court for consideration of the issue with regard to the maintainability and the merits of the application filed by the contractor under Order VI Rule 17 C.P.C."
12. Their Lordships of the Hon'ble Supreme Court in Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others, (2007) 5 SCC 602 have held that additional of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can be allowed as long as the amended pleadings do not result in causing grave and irretrievable prejudice to the plaintiff or displacing him completely. Their Lordships have further held that the prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. Their Lordships have held as under:
::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 14"19. It is equally well settled principle that a prayer for amendment of the plaint and a 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 substituting a new cause of action in the plaint may be objectionable.
20. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran Pillai (2000(1) SCC 712) and Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows:-
"As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 15 opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply .
only to a case of the plaint being amended so as to introduce a new cause of action."
21. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357], this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has 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 serious injustice."
22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.
27. As noted herein earlier, Mr. Lalit while inviting us to reject the application for amendment of the written statement as was done by the High Court had placed strong reliance on the case of Modi Spinning (supra). In that case, a suit was filed by the plaintiff for claiming a decree for Rs.1,30,000 against the defendants. The defendants in their written statement admitted that by virtue of an agreement dated 7th April, 1967 the plaintiff worked as their stockists-cum distributor. After three years the defendants by application under Order 6, Rule 17 of the Code sought amendment of written statement by ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 16 substituting paras 25 to 26 with a new para in which they took the fresh plea that plaintiff was a mercantile agent cum purchaser, meaning thereby that they sought to go beyond their .
earlier admission that the plaintiff was a stockist-cum-
distributor. In our opinion, the present case can be distinguished from that of Modi Spinning case. In that case, the pleadings that were being made by the plaintiff for amendment were not merely inconsistent but were resulting in causing grave and irretrievable prejudice to the plaintiff and displacing him completely. In paragraph 10 of this decision this Court also appreciated that inconsistent pleas can be made in the pleadings but the effect of substitution of paragraphs 25 and 26 in that decision was not making inconsistent and alternative pleadings but it was seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. In the facts of that decision this Court further held that if such amendments were allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. That apart in that decision the High Court also rejected the application for amendment of the written statement and agreed with the trial court. This decision in the case of Modi Spinning would not stand in the way of allowing the application for amendment of the written statement as the question of admission by the defendants made in the written statement, more particularly in paragraph 8 of the written statement, was not at all withdrawn by the amendment but certain paragraphs were added inviting the plaintiff and defendants 1 to 7 to prove their legitimacy on the death of Appaso. That being the position, we do not think that Modi Spinning case will at all stand in the way of allowing the application for amendment of the written statement. It is true that in the case of Basavan Jaggu Dhobi this Court, in the facts of that case, held that it would not be open to a party to wriggle out of admission as admission is a material piece of which would be in favour of a person who would be entitled to take advantage of that admission. In the present case, admission made in Para 8 of the written statement was not at all withdrawn but only a rider and/or proviso has been added ::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 17 keeping the admission in tact. In that decision also this Court has appreciated the principle that even the admission can be explained and inconsistent pleas can be taken in the pleadings .
and thus amendment of the written statement can be allowed.
In our opinion, as noted herein earlier, in the present case, the amendment would not displace the case of the plaintiff, as it would only help the court to decide whether the respondents are eligible to the said share in the property on proof of their legitimacy for which no irretrievable prejudice would be caused either to the plaintiff or to defendant nos. 2 to 8. Accordingly, we do not think that Basavan Jaggu Dhobi could be applied in the facts of this case, which is clearly distinguishable."
13. The new plea raised by the defendant in the written statement by way of amendment could not be taken by him before the trial court for the simple reason that the plaintiffs, who were substituted before the appellate court, have claimed their ownership and possession on the basis of the "will" executed by Devku before the first appellate court.
No prejudice would be caused to the plaintiff. Rather it would minimize the litigation.
14. Their Lordships of the Hon'ble Supreme Court in Andhra Bank vs. ABN Amro Bank N.V. and others, (2007) 6 SCC 167 have held that amendment of written statement whereby additional ground has been introduced is permissible.
Their Lordships have held as under:
"6. That apart it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken."::: Downloaded on - 15/04/2017 17:43:51 :::HCHP 18
15. Accordingly, the petition is allowed. Order dated 3.5.2005 is set aside. The amendment, as prayed for, is .
allowed. Amended written statement is permitted to be taken on record. The parties, through their counsel, are directed to appear before the Additional District Judge, Ghumarwin on 13.4.2015. The Additional District Judge, Ghumarwin is directed to decide the case within a period of six months after the pleadings are complete. Pending application(s), if any, also stands disposed of. No costs.
r (Justice Rajiv Sharma),
Judge.
9.3.2015
*awasthi*
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