Allahabad High Court
State Of U.P. & Others vs Ashok Kumar & Others on 6 August, 2014
Equivalent citations: 2015 AIR CC 1325 (ALL), (2014) 144 ALLINDCAS 14 (ALL), 2015 (2) ALL LJ 5, (2014) 4 CIVLJ 732, (2014) 125 REVDEC 690, (2014) 8 ADJ 251 (ALL), (2014) 106 ALL LR 573, (2015) 2 ALL WC 1549
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Court No. - 19 Case :- SECOND APPEAL No. - 536 of 2007 Appellant :- State Of U.P. & Others Respondent :- Ashok Kumar & Others Counsel for Appellant :- R.K. Saxena,S.C. Counsel for Respondent :- Vikash Budhwar,M.D. Singh Shekhar Hon'ble Anil Kumar,J.
(Civil Misc. Amendment Application No.11042 of 2013) Shri P. P. Chaudhary, learned counsel for the appellants, Shri M. D. Singh Shekhar, learned Senior Advocate assisted by Shri Vikash Budhwar, learned counsel for the respondents and perused the record.
In nutshell, the controversy involved in the present case is that the plaintiff-respondents filed a suit for permanent injunction registered as Regular Suit No.160 of 1999 inter alia stating therein that Khasra No.49 Rakba 10-5-0 belongs to them, recorded as Bhumidhar in the Revenue record. They had given a permission to Shri Chhuttan/thekedar to use the part of land as a way for the purpose of mining in the adjacent land. So, the defendant may be restrained from interfering in any manner on the land in dispute.
On the basis of the pleadings/evidence on record, the trial court passed a judgment and decree dated 19.1.2001that the defendants-appellants should not interfere in the possession of the plaintiffs over the land in dispute but restrain the thekedar Sri Chuttan from using the way of Khasra Plot No.49 for the mining purpose.
Aggrieved by the said facts, the defendants-appellants filed a Civil Appeal No.106 of 2003, dismissed by judgment and decree dated 10.3.2004. In view of the said facts, the present second appeal has been filed by the defendants-appellants.
During the pendency of the second appeal, on 10.1.2013, the amendment application under Order 6 Rule 17 C.P.C. has been moved on behalf of the appellants to incorporate the following amendments in the written statement :-
"That in paragraph no.2 of the written statement after word "स्वीकार" the word "नहीं" may be added.
That after paragraph no.11 of the written statement a new paragraph as para no.11-A may be added in the following manner : यह कि सही तथ्य यह कि पुराना खसरा नंबर ४०० रकबा 139 एकड़ गज़ट नोटिफिकेशन दिनांक 27.7.1970 के द्वारा अंतर्गत धरा २० वन अधिनियम १९२९ रक्षित वन घोषित कर दिया गया और तभी से यह वन विभाग के स्वामित्व एवं कब्ज़े में चली आ रही है ।
दौरान चकबंदी प्रक्रिया चकबंदी कर्मियों द्वारा छिद्दा सिंह आदि की मिलीभगत से खसरा नंबर ४०० को अवैध रूप से विभिन्न खण्डों में विभक्त कर खसरा नंबर ४००/१ एवं खसरा नंबर ४००/२ को अवैध रूप से नया खसरा नंबर ४९ कायम करके छिद्दा सिंह एवं मनीराम के नाम से अंकित कर दिया गया है ।
इस प्रकार की अवैध प्रविष्ट के आधार पर वादिगण को भूमि खसरा नंबर ४९ पर कोई अधिकार एवं स्वामित्व प्राप्त नहीं है | That in second line of paragraph no.13 of the written statement after the word "आबादी से मिला हुआ है" the word "आबादी का नंबर है" may be deleted and its place the word "आरक्षित वन की भूमि है" may be added.
That in the second line of paragraph no.14 of the written statement after the word "नम्बर ४९ पर गलत प्रविष्टि" may be added.
That in four line of paragraph no.16 of the written statement after the word "नम्बर ४९" the word "गलत प्रविष्टि" may be added.
That in 3rd line of paragraph no.18 of the written statement after the word "नम्बर ४९ वन भूमि" the word "से मिला हुआ " may be deleted."
Shri P. P. Chaudhary, learned State Counsel in support of the application for amendment as sought in the written statement submits that the land in question recorded as Khasra No.400 having area No.139 hectare in the revenue record is a forest land. In this regard, he has placed reliance on notification dated 27.7.1970. Thereafter, during the consolidation proceedings, the Khasra Plot No.400 has been bifurcated as Khasra Plot Nos.400/1 and 400/19 and subsequently recorded Khasra Plot No.49 in the revenue record. Hence, the plaintiffs-respondents have got no right and title over Khasra plot nos.400/1 and 400/2. So, keeping in view the above said facts, amendment is necessary in the written statement. In support of his argument, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Baldev Singh and others vs. Manohar Singh and another (2006) 6 SCC 498 wherein it has been held as under :-
"Para 16- This being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint. In Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram & Co.(1976) 4 SCC 320, this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the trial court had gone wrong in holding that the defendant-appellants are not allowed to take inconsistent pleas in their defence."
And in the case of Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. AIR 2007 Supreme Court 1663 wherein paragraph nos.18 and 19 held as under :-
" It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran Pillai (2000(1) SCC 712) and Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)].
Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179 as follows :-
"As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action."
Learned State Counsel further submits that even if admission has been made earlier in the written statement by the appellants-defendants in respect to the ownership of the land recorded as Khasra Plot No.49 in the revenue record (Khasra Plot No.400/1 and 400/2), but the said position may be explained by way of amendment by taking alternate plea/inconsistent plea. So, the amendment as sought by the appellant-defendants in written statement that the land in question is a part and parcel of the land recorded as Khasra Plot No.400 in the revenue record belongs to forest department and plaintiffs/respondents have got no right or title over it. In support of of his argument, learned State Counsel has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another AIR 1983 Supreme Court 462 wherein paragraph no.2 has held as under :-
"Even if the High Court was justified in holding that the deletion of the word 'Uterine' has some significance and may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisional jurisdiction. We may, in this connection, refer to Ganesh Trading Co. v. Moji Ram, (1978) 2 SCR 614 : (AIR 1978 SC 484) wherein this Court after a review of number of decisions speaking through Beg, C. J. observed that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the learned Counsel for the respondents contended that by the device of amendment a very important admission is being withdrawn. An admission made by a party maybe withdrawal or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned trial judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction for a reason which is untenable ought not to have interfered with the order made by the trial court. The learned Counsel for the respondents in this connection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment. The decision does not lay down any particular principle of law and appears to be a decision on its own facts. And ordinarily, it is well settled that unless there is an error in exercise of jurisdiction by the Trial Court, the High Court would not interfere with the order in exercise of its revisional jurisdiction."
Accordingly, it is submitted by learned State Counsel that as the land in dispute is a forest land as per the notification dated 27.7.1970 and amendment application may be allowed in order to incorporate the above said pleas in written statement in the interest of justice to decide the controversy involved in the present matter.
Shri M. D. Singh Shekhar, learned Senior Advocate assisted by Shri Vikash Budhwar, learned counsel for the respondents submits that as per the facts on record, Khasra Plot No.400 was an area of 481 bigha out of which Khasra Plot Nos.400/1 to 400/19 has been carved out. So as far as Khasra Plot No.400/3 to 400/19 are concerned, the area of same is 222 bigha i.e. 139 hectare and as per the Notification dated 27.7.1970, Khasra plot No.400 was having area No.139 hectare is a forest land. In view of the said facts, the Khasra Plot No.400/1 and 400/2 are not a forest land recorded in the name of Chidda Singh and Mani Ram from whom the plaintiff's/respondents had purchased the same. Thus, keeping in view the above said facts, amendment sought by the defendants/appellants cannot be allowed which change their earlier stand in the written statement and even otherwise on merit, the amendment as sought by the appellant cannot be allowed.
It is further submitted on behalf of the plaintiffs/respondents that as per the settled proposition of law by way of amendment, the defendants/appellants cannot be allowed to alter/change the admission taken by them in the written statement. So, keeping in view the above said facts, the amendment sought by the defendants/appellants is nothing but amounts to take "u" turn from their earlier stand/admission made in the written statement cannot permissible under law.
Another submission made on behalf of the plaintiffs/respondents is that after filing of the second appeal i.e. 8 years, the present application for amendment has been moved by the appellants-defendants, so the same cannot be allowed at this belated stage, when the said plea is available to them at trial court stage. In this regard, he has placed reliance on the judgment given by Hon'ble the Orissa High Court in the case of Balaji Mohaprabhu and another v. Narasingha Kar and others AIR 1978 ORISSA 199 wherein paragraph no.11 held as under :-
"After the hearing of this appeal, a petition for amendment of the plaint was filed on behalf of the appellant on 19.12.77. A counter to the said petition was filed on behalf of defendant no.1. In the said petition for amendment it is prayed that after para 12 of the plaint the following paragraph may be inserted :
"Even if plaintiff No. 2 fails to prove that he is the adopted son of late Ramachandra Mahanty, he is in actual management of the deity and its properties and is its de facto hereditary trustee and its worshipper, and as such can represent the deity in this suit to safeguard its interests and recover possession of the suit properties from the defendants on behalf of the deity."
The statement in the said paragraph that plaintiff No. 2 is in actual management of the deity and its properties and is its de facto hereditary trustee is contrary to the concurrent findings of fact of both the courts below. So these facts cannot be allowed to be reagitated in the suit. In the aforesaid paragraph it is not asserted that the defendants in any way are mismanaging the properties of the deity or that they in any way are acting adversely to the deity's interest. Admittedly, the defendants are worshipping the deity as its Sebaits and are looking after its properties for the last 40 years. In the written statement the defendants do not claim any proprietary right over the suit properties, excepting items Nos. 28 and 29 in the plaint B schedule properties which have been found by the courts below not to belong to the deity. It is the concurrent finding of both the courts below that plaintiff No. 2 has not been able to establish his case of adoption to Jamuna, on which basis only he filed this suit. The nature and the scope of the suit will completely change if the amendment prayed for is allowed. Apart from all that, even if the amendment is allowed, that will not enable plaintiff No. 2 to obtain any decree in this suit as there is even no averment in that paragraph that the persons who are admittedly performing the Sebapuja of the deity for the last 40 years are in any way mismanaging the properties of the deity and/or are acting adversely to its interest. Law enables worshippers to institute suits on behalf of the deity only to safeguard the interest of the deity. Therefore, so long it is not shown that the persons who actually are performing the Sebapuja of the deity and are in management of its affairs and properties are mismanaging its affairs and acting adversely to its interest, no worshipper can institute a suit to unsettle the existing arrangement, much less to take over possession of the deity's properties as prayed for in the suit and in the amendment prayed for.
In the counter filed by Khali Kar, the son of defendant No. 1 (now dead) it is stated that the Endowment Commissioner by his order dated 8-7-77 has appointed this Khali Kar as an interim trustee of plaintiff No. 1 after the death of his father on 26-4-77. A copy of the said order authenticated to be a true copy by the Advocate for the respondents, has been filed as Annexure 1 to the said counter. The above fact has not been controverted by the plaintiff No. 2.
On the above considerations the petition for amendment filed at this late stage is rejected."
Orissa High Court in the case of Dr. Padmini Mishra v. Dr. Ramesh Chandra Mishra AIR 1991 Orissa 263, the relevant portion quoted herein below :-
"As already stated, such an amendment, if allowed, would necessarily have the consequence of permitting the suit to be tried afresh from the stage of framing of the issues as none of the questions now raised was the subject matter of the suit at the stage of trial. Thus the amendment of the plaint now sought for, if injustice to the defendant. I would, therefore, conclude that the petitions for amendment of the plaint and also the memorandum of appeal are liable to be rejected, which I hereby do."
Karnataka High Court in the case of State of Karnataka v. Naziruddin Karim Saheb Patel 1981 LAB I.C. 1125 wherein the relevant portion of paragraph no.13 held as under :-
"As this was not a ground urged either in the pleadings of the trial Court or urged as an argument also having not raised it in the memorandum of appeal, he has made an application under O. VI R.17 CPC, to permit him to amend the written statement. Similarly, an application has been made to amend the memorandum of appeal and the reliefs prayed for. I think, neither facts of the case nor the conduct of the defendant warrant this Court to permit amendment of written statement at this late stage, to put the plaintiff totally off-guard."
In the case of Mohd. Shakoor (Since Dead) vs. Chhedi Koerj 1038 All CJ wherein this Court in paragraph no.10 held as under :-
"After hearing the learned counsel for the parties in respect of the amendment application, I am of the view that it cannot be allowed at this stage. The reason for not allowing the amendment application are several. The defendant no.7 in the written statement in para 23 had pleaded that plaintiff has no capacity to purchase the land in dispute. It was also said that necessary averments were not made in the plaint due to the fact that the plaintiff' was not in fact ready and willing to perform his part of contract, rather the suit was filed only with an intention to harass the defendant respondent no.2. The suit was filed on 8.1.70. The written statement was filed by the defendant no.2 on 6.5.70. The lacuna and defect in the plaint was pointed out as far as back in May 1970. The plaintiff's-appellants had not taken precaution or care to seek for necessary amendments at the earliest. They waited/till the decision of the lower appellate court was given and at the time of filing of the second appeal before this court after about 15 years from the original date of institution of the suit., the application for amendment was moved. The amendment prayed by the plaintiff's-appellants is highly belated, a legal right accrued in favour of the defendant respondent no.2 due to passage of time. Now a legal right which was accrued in favour of the respondent cannot legally be withdrawn or extinguished by allowing this amendment application, fulfilling the lacuna and defect in the plaint. Thus, the amendment application is liable to be rejected."
The next submission made on behalf of the plaintiffs/respondents is that in the application for amendment no necessity has been shown/pleaded that why the same has been sought at this belated stage, when the matter is sub judice in the second appeal that too after eight years of filing of second appeal, so the amendment cannot be allowed. In support of the said argument, he has placed reliance on the following judgments :-
1.Union of India and others vs. Lt. Col. Ajay Narain Sapru and others 1989 All CJ 583
2.Sushil Kumar vs. X Addl. District Judge, Bareily 1997 All CJ 177
3.Surjeet Singh vs. Addl. District Judge Sitapur and others 2011 (4) ADJ 137 (LB)
4.Kishore and others vs. Additional District Judge, Court No.8, Lucknow and others 2011 (3) ADJ 288 (LB)
5.Shashi Kant Pandey vs. Mithilesh Kumar @ Ganga Devi and others 2014 (103) ALR 137 Learned Senior Advocate also argued that the amendment sought to be incorporated in written statement changes the entire defence as well as the merit of the case so cannot be allowed keeping in view of the provisions as provided under Order 6 Rule 17 C.P.C.
In support of his argument, he has placed reliance on the judgment given by this Court in the case of Ram Dev and others vs. Ram Badan 166 All CJ, wherein the relevant portion of paragraph no.3 has held as under :-
"In Ganpat Singh v. Sher Bahadur Singh (AIR 1978 All. 66) cited for the respondent for instance it was observed that the general rule is that a party is not allowed by amendment to set up a new case or new cause of action particularly when a suit on the new cause of action is barred. In face of the contention in the plaint as originally drawn to the effect that the land vests in the plaintiff, the contention now introduced in the alternative, namely, that even if the land belongs to the defendants, the plaintiff has had the right of easement introduces a new cause of action that has not existed in the pleadings upto this time."
And the judgment given by Hon'ble the Apex Court in the case of S. Malla Reddy vs. Future Builders Co-operative Housing Society, B. K. Narayan Pillai vs. Parameshwaran Pillai And Another, 200 1 SCC 712 wherein paragraph no.16 has held as under :-
"On the other hand, Order VI Rule 17 CPC empowers the court to allow either party to alter or amend his own pleading and on such application the court may allow the parties to amend their pleadings subject to certain conditions enumerated in the said Rule.
Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable."
Accordingly, learned Senior Advocate submits that the application for amendment is liable to be rejected.
I have heard learned counsel for the parties and gone through the record.
In order to decide the said controversy , it is necessary to state the following facts regarding Order 6 Rule 17 C.P.C. :-
Order 6 Rule 17 CPC as exists before 1999 is quoted as under:-
"Order 6 Rule 17:
"17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
The aforesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999 Section 16 of the Amendment Act reads as follows:
"16. Amendment of Order 6- in the First Schedule, in Order 6- *** ****** ****** ******
(iii) Rules 17 and 18 shall be omitted."
The provision as it exists now after the Civil Procedure Code (Amendment) Act, 2002 Order 6 Rule 17 "17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
It is seen that before the amendment of Order 6 Rule 17 by Act 46 of 1999, the Court has taken a very wide view of the power to amend the pleadings including even the plaint as could be seen from L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., AIR 1957 SC 357: 1957 SCR 438, SCR at 450 and Gurdial Singh V. Raj Kumar Aneja, (2002) 2 SCC 445: AIR 2002 SC 1003.
By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.
Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 14 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is the proviso which falls for consideration."
It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC ( Amendment ) Act 2002.
Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amendment of Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic-Rule) 17, as it existed prior to the amendment , was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by the Civil Procedure Code ( Amendment) Act , 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule.
While interpreting the provisions of Order 6 Rule 17 C.P.C. Hon'ble the Apex Court in the case of Heeralal Vs. Kalyan Mal and Ors., AIR 1998 SC 618, held as under:-
"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 t be explained by him by amending the written statement by submitting that it was not agreement of sale as such but it was n 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 complete 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 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 (supra) 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 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."
In the case of Rajesh Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors., 2006 (4) SCC 385, while emphasizing on the underlined principles of Order VI Rule 17 of the C.P.C., it was held that "20. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice."
Hon'ble the Apex Court in the case of Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. [(2007) 5 SCC 602], has observed as under :-
"26. Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and Defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of the plaintiff and Defendants 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao. Therefore, it must be held that in view of our discussions made hereinabove, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement."
In the case of Gautam Sarup Vs. Leela Jetly & Ors. 2008 LCD 1377, Hon'ble the Supreme Court held as under:-
"An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore.
14. In State of Haryana & Ors. v. M.P. Mohla [(2007) 1 SCC 457] this Court stated :
"25. The law as regards the effect of an admission is also no longer res integra. Whereas a party may not be permitted to resile from his admission at a subsequent stage of the same proceedings, it is also trite that an admission made contrary to law shall not be binding on the State."
15. A thing admitted in view of Section 58 of the Indian Evidence Act need not be proved. Order VIII Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order XII Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom.
The decisions of this Court unfortunately in this regard had not been uniform. We would notice a few of them.
16. A Three Judge Bench of this Court speaking through Ray, CJ in Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co. [(1976) 4 SCC 320] opined :
"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 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 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."
17. A Two Judge Bench of this Court, without noticing the binding precedent in Modi Spinning (supra), in Panchdeo Rarain Srivastava v. Km. Jyoti Sahay & Anr. [1984 Supp. SCC 594], stated :
"But the learned counsel for the respondents contended that by the device of amendment a very important admission is being withdrawn. 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."
Yet again, in Akshaya Restaurant v. P. Anjanappa & Anr. [1995 Supp.(2) SCC 303], the following observations were made by the Court :
"We find no force in the contention. It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in para 6 of the written statement a definite stand was taken by subsequently in the application for amendment it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 CPC in permitting amendment of the written statement." [See also Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary [1995 Supp. (3) 179]
18. The question came up for consideration before another Division Bench in Heeralal v. Kalyan Mal & Ors. [(1998) 1 SCC 278], wherein noticing the aforementioned decisions, Modi spinning's decision was followed. Akshaya Restaurant (supra) was held to have been rendered per incuriam.
Other decisions which were cited at the Bar were distinguished stating:
"10. Consequently it must be held that when the amendment sought in the written statement was of such a 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 the 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."
In the case of Sushil Kumar Jai Vs. Manoj Kumar & Anr 2009 LCD 1096, Hon'ble Supreme Court held as under:-
"9. That apart, a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence.
10.At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action (See Baldev Singh & Ors. vs. Manohar Singh & Anr. AIR 2006 SC 2832)."
Further, in the case of Arundhati Mishra Vs. Sri Ram Charitra Pandey, 1994 (2) SCC 29, Hon'ble Apex Court observes in the manner as follows:
"It is settled law as laid down by this Court in Firm Sriniwas Ram Kuamr Mahabir Prasad that, AIR 1951 SC 177 that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts. The essential requisites are that the delay in making the application; the reason therefore should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted."
In the case of B.K. Narayanan Pillai Vs. Parameshwar Pillai, AIR 2000 SC 614, the Hon'ble Apex Court again observes:
"The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Court and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation."
In the Case of Praful Manohar Rele Vs. Smt. Krishnabai Narayan Ghosalkar & Ors., 2014 SAR (Civil) 185, Hon'ble the Supreme Court held as under:-
"13. The general rule regarding inconsistent pleas raised in the alternative is settled by a long line of decisions rendered by this Court. One of the earliest decisions on the subject was rendered by this Court in Srinivas Ram Kumar v. Mahabir Prasad and Ors. AIR 1951 SC 177, where this Court observed :
"It is true that it was no part of the plaintiff's case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defendant second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material...An Appellant may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative."
In the case of Reevajeetu Builders and Developers v. Narayanaswamy and sons and others (2009) 10 SCC 84, while summarise various points and factors which should be taken into consideration while dealing with amendment application,Hon'ble Supreme Court held as under, the relevant portion quoted as under:
"Para 62". The purpose of imposing costs is to:
a) Discourage mala fide amendments designed to delay the legal proceedings;
b) Compensate the other party for the delay and the inconvenience caused;
c) Compensate the other party for avoid able expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
d) To send a clear message that the parties have to be careful while drafting the original pleadings."
"Para 63". On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1)whether the amendment sought is imperative for proper and effective adjudication of the case;
(2)whether the application for amendment is bona fide or mala fide;
(3)the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4)refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5)whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6)as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive."
Thus, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action.
Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. Thus, by way of amendment alternate/inconsistent plea can be taken in the written statement.
So far as argument advanced from the side of the plaintiff-respondent that no necessity has been shown rather there is no pleading that why the amendment has been sought in the written statement is concerned, a plain and literal meaning to provisions of Order VI Rule 17 of CPC, shows that it enables the parties to amend a plaint or written statement and there is no necessity to plead that application for amendment could not be moved in spite of due diligence. Meaning thereby, provisions of Order VI Rule 17 of CPC does not prohibit to amend a plaint or written statement while considering the application for amendment, Courts have to see whether amendment is necessary to decide the real controversy and no prejudice and injustice is caused to other parties. Hence, the same has got no force, rejected.
One of the argument advanced in the matter is that by way of amendment, the admission made by the appellant/defendant will completely change the nature of defence taken by the defendant in the written statement. Even assuming that there was admission made by the appellant in his written statement then such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence. As it is well settled law that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Additing a new ground of defence or substituting or altering a defence does not raise the same problem as adding altering, substituting a new cause of action. It is equally well settled that in the case of an amendment of a written statement, the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the later and addition of a new ground of defence or substituting or altering a defence or taking on consistent pleas in the written statement can also be allowed. (See Baldeo Singh and others v. Manohar Singh and another (2006) 6 SCC 498).
Further, in the case of Modi Spinning & Weaving Mills Co. Ltd. & Anr. Ladha Ram & Co. (1976) 4 SCC 320, it has been held that it is true that inconsistent pleas can be made in pleadings and the admission can be explained by inconsistent pleas to be taken in the written statement by filing the application for amendment of the same. [See Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (1995) Supp. (3) 179] In the case of Panchdeo Narain Srivastava v. K. Jyoti Sahay, AIR 1983 SC 462, Hon'ble the Apex Court in paragraph no.3 while considering the amendment in written statement has held as under :-
"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."
Thus, argument in question advanced on behalf of plaintiff/respondent has no force, rejected.
So far as argument raised by learned counsel for respondent that after filing of eight years of the second appeal, amendment as sought cannot be allowed in the written statement is concerned, from the perusal of the Order 6 Rule 17 C.P.C., it is crystal clear that the said provisions provided that "at any stage of the proceeding" and "for the purpose of determining the real question in controversy" are important. The whole object and purpose of introduction of Order 6 Rule 17 C.P.C. is to avoid multiplicity of proceeding and/or to shorten the litigation and to settle the entire dispute at rest, thus, keeping in view the expression "at any stage of the proceedings" employed in Order 6, Rule. 17, CPC, the Court is competent to deal with the application for amendment as it keeps seisin over the case till the controversy is not decided at any point of time even at the stage of second appeal in spite of the fact that the said pleas are available at trial stage.
Further, the expression "at any stage of the proceedings" is elastic and not circumscribed or limited by any condition, the Legislature in its wisdom had left the same very wide open without imposing any kind of limitation to its elasticity. If it is necessary for the purpose of determining the real question in controversy then it may be allowed.
The point in issue should be looked independently as per the provisions of Section 107 C.P.C. which provides that appellate court shall have same power and shall perform as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein, the same reads as under:
"107. Powers of Appellate Court. - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
Accordingly, in response to power conferred under Section 107 CPC, the Appellate Court has got jurisdiction to exercise all such powers which is vested in the Courts of original jurisdiction. Virtually, the appeal is in continuation of suit and keeping in view the mandate of Section 107 CPC, the Appellate Court possesses the jurisdiction to allow the amendment application for the ends of justice keeping in view the facts and circumstances of a particular case.
Hon'ble the Apex Court in the case of Andhra Bank vs. ABN Amro Bank N. V. & Ors. AIR 2007 Supreme Court 2511 has held that considerable delay has been caused by the appellant in filing the application for amendment of the written statement and cannot be ground for refusal of the prayer for amendment.
Thus, keeping in view the above said proposition of law, the argument raised by learned counsel for the plaintiff-respondent that the amendment which has been sought by the defendant-appellant in second appeal that too after filing of eight years when the said facts are available at trial stage cannot be allowed, has got no force, rejected.
So far as the submission made on behalf of the plaintiffs/respondents while opposing the application for amendment that Khasra No.400 having area No.139 hectare in the revenue record is a forest land and subsequently, after bifurcation as Khasra Plot No.400/1 to 400/19, Khasra Plot Nos.400/3 to 400/19 are an area of 222 bigha, the same is a forest land as per notification dated 27.7.1970. Hence, Khasra Plot No.400/1 and 400/2 (Khasra Plot No.49) are not a forest land recorded in the name of defendant-appellant relates to the merit of the controversy involved in the present case, cannot be considered at this stage while allowing an application for amendment of pleadings. (See Andhra Bank vs. ABN Amro Bank N. V. & Ors. AIR 2007 Supreme Court 2511).
For the foregoing reasons, an application for amendment is allowed and the defendants-appellants are permitted to make necessary amendment in the written statement within three weeks. Rebuttal, if any, may be filed within two weeks.
List thereafter.
Order Date :-06.08.2014/Mahesh