Punjab-Haryana High Court
Harbans Lal vs Dev Raj And Ors. on 19 August, 2002
Equivalent citations: 2003 A I H C 3277, (2003) 1 RECCIVR 222, (2003) 1 ICC 655, (2003) 1 CIVILCOURTC 526, (2003) 3 LANDLR 239, (2002) 3 PUN LR 718
JUDGMENT M.M. Kumar, J.
1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') is directed against order dated 8.11.1993 passed by the Sub Judge, IInd Class, Mansa allowing the application of the defendant-respondents filed under Order VI Rule 17 of the Code seeking amendment of the written statement. Feeling aggrieved against that order, the plaintiff-petitioner has filed the present revision petition.
2. Brief facts of the case are that plaintiff-petitioner has filed a Civil Suit No.301 of 17.5.1990 for declaration to the effect that he is owner in possession of the suit land to the extent of 1/4th share, share of defendant-respondent No.3 and one shop as specified in the heading of the plaint. A further declaration was sought that defendant-respondents have no concern with the said property. The basis of the claim made by the plaintiff-petitioner was a family settlement/agreement dated 30.1.1990. Defendant-respondents in their written statement filed on 13.6.1990 did not controvert the averments made by the plaintiff-petitioner and admitted the claim made in the plaint by the plaintiff-petitioner praying that the suit be decreed.
3. However, later on an application dated 6.9.1990 was filed under Order VI Rule 17 of the Code seeking amendment of the written statement. It was averred in the application that the plaintiff-petitioner and defendant-respondents are real brothers. There was a family settlement regarding their family property. According to that settlement the property which was in the name of the plaintiff-petitioner had to be transferred to the defendants and he was also to deposit and open an F.D. Account of Rs.50,000/- in the name of their mother. Apart from this an amount of Rs. 2,06,000/- (Rs. two lac and six thousand) he had to pay to three brothers i.e. defendant-respondents by 30.6.90. Thereafter property was to be transferred. But as per the agreement the property which the plaintiff-petitioner had to transfer to the defendant-respondents was not transferred. He also did not pay the above mentioned cash sum. In the written statement filed in the Court the plaintiff-petitioner got admitted all the above mentioned transactions and accordingly got the statements also recorded. It was claimed that the plaintiff-petitioner was not entitled to get the property decreed in his name and nor he was entitled to get the share of the defendant-respondents in the shop. The defendant-respondents prayed for amendment of the written statement. The following amendments were sought to be incorporated in the written statement:-
"That instead of Ziman numbers 1 to 8 which are said to be correct and admitted, in its place at Ziman Nos. 1 to 8 it will be written that the suit of the plaintiff is incorrect the party shall remain owner according to their share which is in their possession. The plaintiff is not entitled to get the share of the defendants in the shop decreed to his name and in the last para in the prayer it shall be written that the suit of the plaintiff is wrong and the same is denied and be dismissed with costs and the defendants want to give evidence in support which shall be produced as per the orders of the court and whatever statements and defendant has made due to the fraud played by the plaintiff, shall be withdrawn with the permission of the court."
4. The Civil Judge after issuing notice of the application, framed an issue and returned the findings that the parties never acted upon the family partition and also concluded that it was not possible to conclude that whole of the payment had been made by the plaintiff-petitioner to the defendant-respondents and allowed the amendment. Oruer dated 8.11.1993 passed by the Civil Judge reads as under: -
"After going through the whole of the record, I am of the view that the parties never acted upon as per family partition and at this stage it can not be said that the whole of the payment has been made by plaintiff/respondent to the defendants/ applicants. Even, if the whole of the payment has been made, it can not be considered as family settlement, it will have to be considered as sale and the defendants/ applicants can not be compelled to get the consent decree passed in favour of the plaintiff/respondent and the remedy with the plaintiff/respondent lies elsewhere. I am of the view that the defendants/appellants are at liberty to withdraw the admission made by them in the written statement wrongfully. In view of the above said observation this issue is decided in favour of the defendants/applicants."
5. Mr. Rajesh Garg, learned counsel for the plaintiff-petitioner has argued that admissions made by the defendant-respondents could not be resiled and in support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Modi Spinning & Weaving Mills Co. Ltd. and Anr. v. Ladha Ram & Co., I A.I.R. 1977 S.C. 680. He has further argued that the revision petition would be maintainable even after the amendment of the Code of Civil Procedure, 1908 w.e.f. 1.7.2002 because if the amendment of the defendant-respondents is declined, the suit itself would be disposed of.
6. Having heard the learned counsel, I am of the considered view that this revision petition lacks merit and is liable to be dismissed. It is true that the defendant-respondents have admitted the case of the plaintiff-petitioner but after the filing of the written statement on 13.6.1990; an application was filed within three months explaining in which circumstances the admissions were made. The Civil Judge being conscious of the fact that admissions were made, framed an issue, recorded the evidence and reached a finding that admissions made were erroneous. Therefore, it cannot be said that it was admission of such a kind which remained unexplained. It is well settled that erroneous admissions could be validly explained and on such basis amendments could always be allowed to be incorporated. This proposition has been laid down by the Supreme Court in the cases of Estra/la Rubber v. Dass Estate (P) Ltd., (2001)8 S.C.C. 97 and Gurdial Singh v. Raj Kumar Aneja, (2002-1)130 P.L.R. 835 (S.C.). It is further clear that even if the amendment is declined by allowing the present revision petition, the suit may not necessarily be disposed of because there is no obligation on the trial Court that on the presentation of a plaint and on admission of averments therein, the Court must pass a decree in favour of the plaintiff-petitioner because it has to record its satisfaction. The Court can always take the view and direct the plaintiff-petitioner to lead evidence to prove his/her case. This proposition has been laid down by the Supreme Court in K.K. Chart v. R.M. Seshadri, (1973)1 S.C.C. 761. Thus there is no obligation on the Court that on the filing of the written statement in which averments made in the plaint has been admitted, the suit must be decreed, in cases where no written statement has been filed as provided by Order 8 Rule 10 of the Code, the Supreme Court has held that even if the facts pleaded in the plaint are admitted then it cannot be said that the Court must pass a decree in favour of the plaintiff. Referring to the provisions of Order 8 Rule 10 of the Code, their Lordships of the Supreme Court in the case of Balraj Taneja and Anr. v. Sunil Madan and Anr., (1999)8 S.C.C. 396 observed as under:
"As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specifically where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in Sub-rule (2) of Rule 5 of Order 8; or the expression may make such order in relation to the suit as it thinks fit used in Rule 10 of Order 8."
7. I am further of the view that in cases where process of the court or law is sought to be abused by playing hide and seek, then the proper course to be taken by the trial court is the one adopted by the Civil Judge in the present case. He framed an issue, recorded evidence and gave a finding that omissions were absolutely erroneous and were probably obtained on the basis of belief that the plaintiff-petitioner would act upon the family settlement/agreement. In somewhat similar circumstances, the Supreme Court in Ramachandra Ganpat Shinde and Anr. v. State of Maharashtra and Ors., (1993)4 S.C.C. 216 has observed as under:-
"for an order obtained by abuse of the process of the court or by playing fraud or collusion, the Supreme Court should not countenance the argument that the Court exercising the power under Article 136 would be loath to upset the order of the High Court and should not allow such an order to remain operative for a moment. Equally there is no substance in the argument that the respondent now became aware that the Chairman secured more than 4 to 5 thousand votes though the invalid votes were only of 2 thousand. Being of the members admitted after December 17, 1991 and that should be a factor for the Court's declining to exercise the power under Article 136 to set aside the order of the High Court or the elections conducted pursuant to the permission granted by the Supreme Court. Acceding to it would amount to putting a premium on fraud, collusion or abuse of the process of the court creating disbelief and disillusionment of the efficacy of judicial process and rule of law and a feeling would be generated that persons capable to maneuver and abuse the judicial process would reap the benefit thereof and get away with the orders. Every endeavor would be made to inculcate respect for fair judicial process and faith of the people in the efficacy of law."
8. I am further of the view that in allowing amendments from the side of the defendant-respondents, very liberal view has been taken by the Supreme Court in various decisions. In the case of Prem Bakshi and Ors. v. Dharam Dev and Ors., (2002-1) 130 P.L.R. 558 (S.C.), their Lordships of the Supreme Court held that amendments which are necessary to decide the controversy raised before the Court ordinarily are to be allowed because it would avoid multiplicity of litigation. It was further observed that orders allowing the amendments ordinarily should not be interfered with under Section 115 of the Code and the revision petition would not be maintainable.
9. For the reasons mentioned above, this revision petition fails and the same is dismissed. However, the dismissal of the revision petition shall not constitute a bar for the plaintiff-petitioner to raise all the pleas available under Order XLIII Rule 1-A of the Code at the stage of first appeal, if such an eventuality arises.