Madras High Court
Gurusamy Gounder vs Muthusamy Gounder And Ors. on 9 July, 1999
Equivalent citations: (1999)3MLJ379
ORDER S.S. Subramani, J.
1. Plaintiff in O.S. No. 566 of 1993 on the file of Additional District Munsif's Court, Bhavani is the revision petitioner herein.
2. The suit is one for permanent prohibitory injunction to restrain the defendants and their men from interfering with the existing cart track 'A, B, C, D, E, F' or altering the existing 'A, B, C, D, E, F' track thereby causing dominition of the extent in the blue marked portion in the plaint plan and directing defendants to pay the costs of the suit and afford such other necessary orders as the court may deem fit and proper.
3. In the body of the plaint, plaintiff has stated that there is a cart track 'ABCDERF' in the property as marked in the rough plan filed along with the plaint, which is the access to his property. In para. 4 of the plaint it is further stated that defendants are also entitled as of right to use the 'ABCDERF' cart track by virtue of the recitals in the partition deed No. 531 of 1974.
4. Reason for filing the suit was that defendants under the pretext of using the cart track are encroaching upon plaintiff's property. In para. 5, it is further said that plaintiff is not preventing the defendants from using the red marked portion namely 'ABCDERF' cart track.
5. Written statement was filed by the defendants admitting that they are also entitled to make use of the cart track and they did not intend to widen the same as alleged in the plaint. It is also said that due to misunderstanding between parties, they were also compelled to file another suit as O.S. No. 634 of 1993 before the same court. Cause of action for that suit was the attempt made by plaintiff to obliterate the cart track.
6. Nearly five years after filing written statement, petitioner filed I.A. No. 219 of 1999 to amend the plaint. In the amendment application, plaintiff has stated that the cart track exclusively belongs to him and defendants have no manner of right to make use of the same and they have some other cart track for their use. he also wanted some other amendments to be incorporated in the plaint. In the affidavit in support of the application, he accused his advocate, who has drafted the plaint and said that the plaint was ill-drafted either due to the inability of counsel in understanding the case or by oversight and therefore the amendment is necessary.
7. The application was seriously opposed by the respondents and by the impugned order, the application was dismissed, which is challenged in this revision.
8. At the time of admission itself I heard the entire revision and I do not think that there is any merit in this case.
9. under Order 6, Rule 17, of the Code of Civil Procedure an amendment is to be allowed only for the purpose of determining the real questions in controversy between the parties. What is the right of defendants over the cart track is not a matter in controversy, since plaintiff himself admitted that they are entitled to make use of the same. The only controversy was that under the guise of making use of the cart track, defendants are attempting to interfere in the possession of plaintiff over the rest of his properties. That is denied by defendants. Regarding that allegation, he does not require any amendment.
10. In a recent decision of Honourable Supreme Court, Heera Lal v. Kalyan Lal , their Lordships considered the question has to whether inconsistent plea could be incorporated by amendment, where admission could be allowed to be retracted in pleadings. In para. 9 of the judgment, their Lordships held thus,
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 25.1.1991 between the parties but the nature of the agreement was sought to be explained by him by amending the written statement by submitting that it was not an agreement of sale as such but it was an 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 Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram and Co. In that case Ray, C.J., 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 completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from defendants. In that case a suit was filed by the plaintiff for claiming a decree for Rs. 1,30,000 against the defendant. The defendants in their written statement admitted that by virtue of an agreement dated 7.4.1967 the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under Order 6, Rule 17 sought amendment of written statement by substituting paras. 25 and 26 with a new paragraph in which he | took the fresh plea that the plaintiff was mercantile agent-cum-purchaser, meaning thereby they sought to go behind their earlier admission that the 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 Court is a clear authority for the proposition that once 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 case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of the three member Bench of this Court was not brought to the notice of the Bench of two learned Judges that decided the case in Akshya Restaurant. 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 Akshya Restaurant proceed on an assumption that 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 Spg. 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 and cause him irretrievable prejudice.
11. According to me, the amendment sought for is not coming under Order 6, rule 17 of Code of Civil Procedure and the same is also not maintainable. In the sense, what the plaintiff wants is to raise an inconsistent plea to what he has already raised and if the amendment is allowed, it will amount to allowing plaintiff to withdraw the admission, which he has already made, which will cause manifest injustice to the defendants.
12. In the result, this revision petition is dismissed. No costs, Consequently, C.M.P. No. 9018 of 1999 is also dismissed.