Allahabad High Court
Satish Chandra Saxena And Ors. vs Krishna Prasad Saxena And Anr. on 30 September, 1988
Equivalent citations: AIR1989ALL34, AIR 1989 ALLAHABAD 34, (1989) ALL WC 1470, (1989) REVDEC 65, (1989) 15 ALL LR 105, (1989) 1 ALL RENTCAS 245, 1988 ALL WC 1470
Author: A.P. Misra
Bench: A.P. Misra
ORDER A.P. Misra, J.
1. Since in this revision parties are represented and counter and rejoinder affidavits have been exchanged it is being disposed of finally at the admission stage.
2. The present revision is preferred as against an order dated 11th April, 1988, by virtue of which an application for amendment of the written statement was rejected. A preliminary objection was raised by the learned counsel for the respondents that the present revision is not maintainable in view of the proviso of Section 115, C.P.C. Under the second proviso it is referred : --
".....the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where-
(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."
It was argued on the basis of this proviso that the matter is not revisable and the revision should be dismissed on the ground of maintainability.
3. The present revision in effect is against rejection of amendment in the pleading under Order VI, Rule 17, C.P.C. The matter is covered by a Full Bench decision of this Court in Rama Shanker Tiwari v. Mahadeo, 1968 All LJ 109 wherein it has been held that allowing or rejecting an amendment application amounts to "Case decided" in terms of Section 115, C.P.C. Similar is the view taken subsequently in Sri Ram Narayan Jaiswal v. St. Rajeshwari Devi, AIR 1978 All 214.
4. Even by bare perusal of the proviso it is clear that under the second proviso it is provided that where it would occasion a failure of justice or cause irreparable injury to the party against whom it was made an order could be passed. When a party is refused to amend a pleading it in effect not only stops trial of a case which he wants to set up but to preclude him from leading evidence. In view of this it cannot be said that such an order does not fall under second proviso and thus the argument of the learned counsel for the respondents that the revision is not maintainable is not sustainable.
5. Coming to merits of this case the trial Court rejected the amendment of the written statement on the ground that it amounts to withdrawing of the admisssion made by the defendants in their written statement. I have perused the written statement filed earlier and the amendment filed subsequently. What has been urged on behalf of the respondents is that paragraph 14 of the earlier written statement avers that the present applicant was owner of the part of the disputed land while now by means of this amendment he wants to delete it and is claiming to be the owner of the property by adverse possession. It is necessary before an averment could be treated as an admission to read the various paragraphs of the pleading and by perusal of other paragraphs of the earlier written statement it is clear that the defendants applicants have been pleading . that the plaintiffs have no right over the disputed land and have no right even to transfer. On the contrary, the present applicants have matured the right by adverse possession. In view of this permitting such an amendment, which is made in the present case, I do not find, it amounts to withdrawing the admissions made earlier. Therefore, the argument raised on behalf of the respondents is not sustainable. It is relevant to refer to the decision of the Supreme Court in Panchadeo Narain Srivastava v. Km. Jyoti Sahay, AIR 1983 IN THE SUPREME COURT OF INDIA 462 wherein the Court has gone to the extent of holding that even "an admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn."
6. Lastly, learned counsel for the applicants urged that some compromise has been arrived at between parties by virtue of which only 1/3rd share of the applicants was there and therefore, they could not be permitted to claim the property as a whole. This is a question to be decided by the trial" Court and evidence has to be led. It is not right for this Court to express any opinion in the present revision in exercise of the revisional jurisdiction as it may prejudice the parties at the subsequent stage.
7. Thus, I find that the impugned order dated 11th April, 1988 is liable to be set aside as I am of opinion that in refusing to amend the pleading in the written statement the trial Court committed an illegality which calls for interference by this Court.
8. Accordingly, the present revision is allowed, the impugned order dated 11th April, 1988, is set aside and the case is remanded to the trial Court for proceeding further with case in the light of the observations made above in accordance with law. Costs on parties. Since the case is of 1982 and the matter is pending since long the trial Court shall dispose of this case at an early date.
9. A certified copy of this judgment shall issue to the parties within a week on payment of usual charges.