Himachal Pradesh High Court
Yatinder Singh vs Pratap Singh And Others on 19 May, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.09 of 2022 Reserved on : 10.05.2022 .
Decided on : 19.05.2023
Yatinder Singh ....Petitioner
Versus
Pratap Singh and others
...Respondents
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 Yes For the petitioner : Mr. Nand Lal Chauhan, Advocate.
For the respondents : Mr. R.P. Singh, Advocate.
Satyen Vaidya, Judge By way of instant petition, petitioner has assailed order dated 02.11.2021, passed by learned Civil Judge Arki, District Solan H.P. in C.M.A. No. 289/6 of 2020 in Civil Suit No. 115-1 of 2012.
2. Petitioner and proforma respondents herein are the defendants in Civil Suit No. 115-1/2012 before learned Trial Court. Respondent No.1 herein is the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 19/05/2023 20:32:36 :::CIS 2plaintiff and remaining respondents herein are profoma defendants in the above noted suit.
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3. Parties here-in-after shall be referred to by the same status as they hold before learned Trial Court.
4. Plaintiff initially filed a suit for permanent prohibitory injunction in respect of land comprised in Khata Khatoni No. 26/86, Khasra No. 777, situate in Village Hatkot, Pargana Kunihar, Tehsil Arki, District Solan, H.P.(for short 'the suit land'). It was alleged that plaintiff and proforma defendants were owners in possession of the suit land and defendants having no right, title or interest thereunder were strangers.
Defendants were trying to interfere in the possession of plaintiff and proforma defendants over the suit land by trying to raise construction. On such premise, a decree for permanent prohibitory injunction was sought seeking to restrain the defendants from interfering in the suit land and from dispossessing the plaintiff and proforma defendants therefrom.
::: Downloaded on - 19/05/2023 20:32:36 :::CIS 35. In written statement, defendants took a specific stand that defendant No. 1 (Yatinder Singh) .
had entered the possession of suit land on 13.01.1998 and had started construction work of permanent nature with hostile animus. The construction was completed in three months. Since 13.01.1998, defendant No. 1 had been coming in exclusive possession of suit land openly, peacefully and continuously as of right and to the knowledge of all including plaintiff and other joint owners. It was specifically pleaded that respondent No. 1 had raised permanent structure and was running a shop therein.
He had installed an electric connection in the shop in his name and thus, had perfected the title on the suit land by way of adverse possession even prior to filing of the suit.
6. The plaint was amended with the averment that during pendency of the suit defendants had succeeded in raising unauthorized construction on the suit land. Accordingly, the decree of mandatory injunction against defendants was also sought. In ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 4 written statement filed to the amended plaint, defendants reiterated the same defence as raised by .
them in the written statement filed to the original plaint.
7. Plaintiff completed his evidence in the year 2017. Thereafter, the case came to be adjourned on one pretext or the other. Lastly, defendants were However, they came up r to afforded last opportunity to lead their evidence.
with an application for
amendment of written statement. The amendments
were sought in preliminary objection No. 1 as also
para-1 of the reply on merits by raising a plea that during the Land Revenue Settlement, the dimensions of the land belonging to defendants in old Khasra No. 158 corresponding to new Khasra No. 763 that abutted the suit land had been considerably reduced in width from 46.63 meters to 42.00 meters and therefore, the suit land belonged to the defendants and the plaintiff and proforma defendants had no right to the suit land. Such plea was sought to be raised in alternative.
::: Downloaded on - 19/05/2023 20:32:36 :::CIS 58. Plaintiff filed a reply to the application and objected to the proposed amendment primarily on the .
ground that it would amount to withdrawal of admission by defendants as to title of plaintiff and proforma defendants, which was impermissible in law.
The amendment was also objected on the ground that it was malafide and had been filed only to delay the proceedings.
9. Learned r to Trial Court dismissed the application of defendants for amendment of written statement, vide impugned order on the ground that the application was malafide and could not be entertained at such belated stage. It was also held that the application was filed merely to delay the proceedings.
10. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
11. Learned counsel for the defendants has contended that the application for amendment of written statement could not be rejected merely on the ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 6 ground of delay, more particularly, when defendants had explained the reasons for filing the application at .
the juncture when it was filed. As per defendants, they came to know about the wrong entries in revenue records at much later stage and immediately thereafter they filed an application for amendment. He further contended that the parameters for allowing amendments in written statement were much liberal than the parameters applicable to the amendment of plaint. Defendants were well within their rights to take even inconsistent pleas in alternative. Reliance has been placed by learned counsel for the defendants on numbers of judgments as detailed hereunder:-
1. B.K. Narayana Pillai Vs. Parameswaran Pillai and another, (2000) 1 SCC 712.
2. Surender Kumar Sharma Vs. Makhan Singh, (2009) 10 SCC 626.
3. Sushil Kumar Jain Vs. Manoj Kumar and Anr., AIR 2009 SC 2544.
4. Pankaja and another Vs. Yellappa and others, AIR 2004 SC 4102.
5. Usha Balashaheb Swami Vs. Kiran Appaso Swami, (2007) 5 SCC 602.::: Downloaded on - 19/05/2023 20:32:36 :::CIS 7
6. Baldev Singh and Others Vs. Manohar Singh and another, (2006) 6 SCC 498.
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7. Estralla Rubber Vs Dass Estate (P) Ltd. (2001) 8 SCC 97.
8. Narendrasingh Sengar, Vs. Shrimati Maltidevi and others, AIR 1993, Madhya Pradesh 248.
9. M/s J.S. Tins Fabricators and others, Vs. UCO Bank, AIR 1994 Himachal Pradesh 33.
10. Bollepanda P. Pooonacha and Anr. Vs .
K.M. Madapa, AIR 2008 SC 2003.
12. The legal position as emerges from above noted judgments is as under :-
(i) Delay cannot be the sole criteria to reject the amendment unless it causes irretrievable loss to the other side.
(ii) The scope to allow amendment in the written statement is wider than the scope for amendment of plaint.
(iii) Even inconsistent pleas can be allowed to be raised in written statement provided such amendment does not allow the defendants to withdraw an ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 8 admission made in favour of the plaintiff.
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(iv) And also such withdrawal has consequence of prejudicing the rights already made available to the plaintiff.
13. In my considered view references to following expositions can be more beneficially applied to the issue available in instant case. A three judge Bench of Hon'ble Supreme Court in M/s r Modi Spinning and Weaving Mills Co. Ltd. and another Vs. M/s Ladha Ram and Co. (1976) 4 SCC 320, has held as under:-
"9. The decision of the trial court is correct.
The defend- ants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.
10. 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 ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 9 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.
11. We are told that the defendants proposed amendments to two other paragraphs of written statement. These are para- graphs 4 and l 9 of the written statement. These amendments were also rightly rejected.
12. For the forgoing reasons the appeal must fail. The defendants, appellants cannot be allowed to amend the written statement in the manner suggested.
13. The two alternative pleas of the defendants as alleged in paragraphs 25 and 26 of the written statement are there. The parties will be able to make their rival contentions on the pleadings as to the issues to be raised. The defendants wish to raise issues on those paragraph 25 and 26. Counsel for the plaintiff states that it is open to the defendants to apply for the framing of the issues. They will be at liberty to do so."
14. Placing reliance on M/s Modi Spinning and Weaving Mills Co. Ltd. and another (supra) and two judge Bench of Hon'ble Supreme Court in Heeralal ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 10 Vs. Kalyan Mal and Others (1998) 1 SCC 278, observed as under:-
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"9. Now it is easy to visualize on the facts before this Court in the said case that the defendant did not seek to go behind his admission that there was an agreement of 25th January 1991 between the parties but the nature of agreement was sought to be explained by him by amending the written statement by submitting that it was not agreement of sale as such but it was in agreement for development of land. The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned counsel for the respondents. Even that apart the said decision of two learned judges of this Court runs counter to a decision of a Bench of three learned judges of this court in the case of Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co. [(1977) 1 SCR 728]. In that case Ray, CJ., Speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completly from the admissions made by the defendants in the written statements cannot be allowed. If such amendments are allowed in the written statement plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. In that case a suit was filed by ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 11 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 date 07th April 1967 the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under order Vi Rule 17 sought amendment of written statement by substituting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that plaintiff was mercantile agent cum-purchaser, meaning thereby they sought to go behind their earlier admission that plaintiff was stockist- cum- distributor. Such amendment was rejected by the Trial Court and the said rejection was affirmed by the High Court in Revision. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned judges of this the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the ace of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned judges that decided the case in Akshaya Restaurant (supra). In the latter case it was observed by the Bench of two learned judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 12 (supra) proceed on an assumption tat it was the settled law that even the admission can be explained and even inconsistent pleas could be .
taken in the pleadings. However the aforesaid decision of the three member Bench of this Court in Modi Spinning (supra) is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff's case the cause him irretrievable prejudice.
10. Consequently it must be held that when the amendment sought in the written statement was of such nature as to displace the plaintiff's case it could not be allowed as ruled by a three member Bench of this Court. this aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three member Bench of this Court taking a diametrically opposite view."
15. Later in B.K. Narayana Pillai Vs. Parameswaran Pillai and another (2000) 1 SCC 712, the above legal position has been reiterated by Hon'ble Supreme Court as under:-
::: Downloaded on - 19/05/2023 20:32:36 :::CIS 13"4.................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 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 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 l's 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 avowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be allowed which amounts to or relates in defeating s legal right accruing to the opposite part 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 ::: Downloaded on - 19/05/2023 20:32:36 :::CIS 14 application for amendment of plaint or written statement."
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16. Reverting to the facts of the case, the initial plea in defence raised by defendants is regarding perfection of title over the suit land by defendant No. 1 by way of adverse possession. They have claimed adverse possession of defendant No. 1 that the r plea of to on suit land since 13.01.1998. It cannot be disputed adverse possession has a pre-requisite as to admission of the title of other, against whom the plea of adverse possession is raised. Thus, defendants have admitted the title of plaintiff over the suit land. Now, by taking a plea in alternative, defendants are claiming title of suit land in themselves. Both the pleas are self destructive.
Noticeably, plaintiff has already led his evidence. By allowing the defendants to take such self destructive plea in written statement, it will definitely amount to withdrawal of an admission made in favour of the plaintiff and in addition will also be irretrievably prejudicial to his rights in the suit.
::: Downloaded on - 19/05/2023 20:32:36 :::CIS 1517. Though, for aforesaid, the reasons assigned by learned Trial Court for rejecting the .
application of defendants may not be affirming to the applicable principle of laws, the result still will remain the same. The prayer for amendment of written statement as sought by defendants cannot be allowed for the reasons noted above.
18. In result, the petition fails and the same is accordingly dismissed.
19. Pending miscellaneous application(s) if any, also stands disposed of.
(Satyen Vaidya)
19th May, 2023 Judge
(sushma)
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