Delhi District Court
Bitika Deb vs M/S Pbnk Developers Pvt. Ltd. & Anr on 6 May, 2013
IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 05/12
In the matter of :
Bitika Deb .......Plaintiff.
Vs
M/s PBNK Developers Pvt. Ltd. & Anr. .......Defendants
06.05.2013
ORDER :
1 Vide this order, I shall dispose off the application of the defendant filed u/o 6 Rule 17 CPC for amending the WS.
2 Plaintiff in para 2 of the plaint has made submissions with respect to payment of Rs.7,25,000/ to the defendants. In reply to the said para, defendants had stated "Para 2 of the plaint is not disputed as plaintiff has made the payments". By way of amendment, defendants wish to replace the said para by following words "para 2 of the plaint is wrong and not admitted, hence denied. The alleged money paid by the plaintiff to the defendants is denied. The suit of the plaintiff is time barred, hence liable to be dismissed". 3 Plaintiff has strongly opposed the present application and has Contd....P..1 of 5 denied the submissions of the defendants. Plaintiff has also submitted that she has filed a application u/o 12 Rule 6 CPC and the reply of the same has been filed by the defendants wherein they have clearly admitted the receiving of the said amount and plaintiff has also submitted that defendants have given in writing to return the said amount within 6 months and which is on record. Plaintiff has prayed for dismissal of the application on the ground that defendants cannot take contrary stand which they have taken earlier in WS by admitting the receiving of amount and they cannot resile from their admissions which is very material admission which they have made before this court and the same is not permissible in the law.
4 Defendants have argued that amendment application can be allowed by the court at any stage of proceedings and the only question to be considered is whether the amendment is necessary for decision of the real controversy between the parties.
5 Ld. counsel for plaintiff has argued that amendment of the earlier submissions made by defendants cannot be allowed as the defendants are resiling from their specific admissions made in the WS. Plaintiff has relied on judgment titled Shree Ram Gupta Vs. Shafiquer Rahman & Ors, 2010(3) Civil Court Cases 274 and Anwar & Ors. Vs. District Judge, Ghazipur & Ors, 2010(1) Civil Court Cases 159.
Contd....P..2 of 5 Arguments heard. Record perused carefully.
6 Defendants in their WS have specifically admitted the receipt of Rs. 7.25 lacs from the plaintiff in para 2 of reply on merits. In reply to application u/o 12 Rule 6 CPC filed by the plaintiff with respect to the said amount, the defendants have admitted the receipt of the said amount. By way of the present application, the defendants are resiling from the said admission and are taking the contradictory stand that the alleged money paid by the plaintiff to the defendants is denied. In the matter of Shree Ram Gupta Vs. Shafiquer Rahman & Ors, 2010(3) Civil Court Cases 274; the petitioner by way of amendment application intended to resile with the admission made in the WS which was held to be not permissible by the trial court and the application was dismissed. The order of dismissal was upheld by the Appellate Court. 7 In the matter of Anwar & Ors. Vs. District Judge, Ghazipur & Ors, 2010(1) Civil Court Cases 159; defendant had admitted para 1 of WS part of para 1 of the plaint "Through amendment word 'not' was asseted before the word 'admitted'. Similar amendments withdrawing admission were sought and allowed in paragraphs - 3, 5 6 and 10 of the written statement. A new para as para 10A was also added giving a new twist to the case of the defendants by pleading that Rahat Khan had no male issue and he was having only one daughter who was married to Rahat Khan hence Rahat khan inhrited the entire Contd....P..3 of 5 share of Jasan Khan. In the original written statement, it was stated that only pedigree given in para1 of the plaint is admitted rest of the allegations are denied. Through the amendment the word 'only' was deleted and the word 'not' was added before the word admitted. In this manner the pedigree which had earlier been categorically admitted was denied through amendment." 8 While deciding the amendment application, it was observed that a three Judges Bench of Supreme Court in AIR 1977 SC 680 "M/s Modi Spinning and Waving Mills Co. Ltd. Vs. M/s. Ladha Ram and Co." had taken the view that through amendment admission cannot be withdrawn. It was further observed that the Supreme Court held that it did not mean to displace the earlier case of the plaintiff. In a recent authority of the Supreme Court reported in Somesh Singh Vs. Phoolan Devi & Ors., 2009(107) RD 358 (SC), It has been held that no such amendment in the pleading can be allowed if by reason thereof a party to the suit resiles from admission made at earlier stage. In that authority, another authority of the Supreme Court reported in Gautam Swaroop Vs. Leelu & ors. 2008(2) Apex Court Judgments. The amendment application was dismissed and it was held "In view of the above Supreme Court authorities defendants in the instant case categorically attempted to resile from the admission. Through the amendment they categorically attempted to resile from the admission made in the original written statement. The admission made in the original statement can by no stretch of imagination be described as typing error".
Contd....P..4 of 5 9 In view of the observations made above, the present application is dismissed. To come up for arguments on application under Order 12 Rule 6 CPC on 29.05.2013.
Dictated and announced in the open court on 06.05.2013 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 06.05.2013 Contd....P..5 of 5