Delhi High Court
Kali Charan vs Ishwar Dass on 1 August, 2001
Equivalent citations: 93(2001)DLT304, 2002(61)DRJ401
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT
Devinder Gupta. J.
1. The defendant/appellant has filed this appeal challenging the order passed on 21.8.2000 by learned Single Judge dismissing his application (IA.2723/2000) filed under Order 6 Rule 17 C.P.C. seeking amendment to the written statement.
2. The plaintiff/respondent filed a suit claiming decree for partition with respect to property bearing No.5562-5664, Laddo Ghati, Pahar Ganj, New Delhi and property bearing No.3596-3597, Dariba Pan, Paharganj, New Delhi. Plaintiff and defendants 1 and 2 are the sones of late Bagwan Dass. The plaintiff alleged that after the death of their parents, the plaintiff and defendants 1 and 2 got mutated in their joint names immovable properties and thus the plaintiff and defendants 1 and 2 became joint owners having 1/3rd share each. The plaintiff further alleged that in a portion of property No.5362 to 5364 the plaintiff along with his family and defendants 1 and 2 along with their respective families have been residing but rent was being received for the remaining portions of the said property and other property by defendant No.1 on behalf of the plaintiff and defendant No.2. Since difference had arisen, therefore, necessity arose to file suit for partition. The suit was instituted on 23.5.1996. On 2.10.1996 defendant No.1 filed his written statement accepting the case of the plaintiff and clearly admitting that the suit properties were mutated in joint names of the plaintiff and defendants 1 and 2 and they thus became joint owners of the property to the extent of 1/3rd share. He also admitted that rent was being collected by him on behalf of the plaintiff and defendant No.2. Written statement was filed through Shri W.C.Chopra, Advocate. However, a preliminary objection was raised that defendant No.2 was of unsound mind, therefore, the suit could not proceed till appointment of a proper guardian-ad-litem. The plaintiff also filed replication. Along with the suit the plaintiff filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in which on 31.5.1996 an ex parte order of injunction was granted restraining the defendant from transferring, alienating or creating third party interest in the suit property.
3. In view of the preliminary objection taken by defendant No.1 that defendant No.2 was of unsound mind, the case was adjourned to enable the plaintiff to take appropriate steps for obtaining orders for the appointment of gurdian-ad-litem for the said defendant. Interim order was continued. The plaintiff did file an application (IA.11666/97) seeking appointment of next friend of defendant No.2 and also filed an application (IA.11736/97) under Order 12 Rule 6 C.P.C. praying for a preliminary decree for partition in view of the admission made by defendant NO.1 in his written statement. Notice of this application was given to defendant No.1 for 7.1.1998 for which date the case was directed to be posted before the Joint Registrar for admission and denial of documents. Applications were thereafter directed to be posted before the Court for hearing arguments and the suit for framing of issues. Reply was not filed by the defendants to these miscellaneous applications. Applications were thus adjourned from time to time. In the meanwhile, defendant, No.2 expired on 18.4.1999 and on 5.5.1999 an application (IA.5114/99) was filed bringing the said fact on record and stated that since defendant No.2 as unmarried and had no other legal heir except his two brothers, namely, the plaintiff and defendant No.1, therefore appropriate orders for taking the factum of death of defendant No.2 be taken on record.
4. It was at this stage when IA.5114/99 was field that defendant No.1 appears to have changed his lawyer and this change of lawyer resulted in filing an application (IA.2723/2000) on 22.1.2000 under Order 6 Rule 17 C.P.C. seeking amendment to the written statement. The grounds on which defendant No.1 sought amendment to be carried out in the written statement were that the previous counsel had inadvertently and erroneously, in ignorance of true facts, documents, orders and judgments of different courts, made certain averments and admitted certain facts to be true, which in fact are false, baseless and contrary to the record. He pleaded that written statement was not read over to him by his counsel fin vernacular, which the defendant understands and since averments were made in the written statement by the previous counsel for the defendant inadvertently and erroneously, he may be permitted to amend the written statement.
5. Admittedly, by the proposed amendment the defendant wanted to change the plea of admission of the plaintiff's case to a plea of denial completely refuting plaintiff's title to the property. Needless to add that in the earlier written statement, defendant No.1 specifically admitted the plaintiff to be joint owner with him and defendant No.2 of the property and also admitted the fact that the plaintiff along with his family was residing in a part of property No.5362-5364, Laddo Ghati, Pahar Ganj, New Delhi and he (defendant No.1) had been Realizing rent for rest of the property for and on behalf of the plaintiff and defendant No.2 Now by way of amendment defendant No.1 prays that he be permitted to state that the property did not belong either to the plaintiff or defendant No.2 or to their father late Shri Bahgwan Dass, rather defendant, No.1 alone was the exclusive owner having acquired title to the property by way of adverse possession.
6. Though while considering the question as to whether amendment is or is not to be allowed, merits of the pleas sought to be raised cannot be gone into but in order to find out and come to conclusion about bonafidie of the party seeking amendment it will be necessary to state about the nature of pleas sought to be raised,for which purpose, we are noticing the stand, which the defendant wants to be incorporated in the written statement. While converting his pleas of admission into a plea of denial, the defendant/appellant wants to plead that the suit properties were owned by late Shri Dhunder Bhore, who executed a will in favor of Dal Chand, Munshi Kishori Lal, Giasi Ram and Goverdhan Dass; the will provided for creation of a trust of the suit properties and properties to be given on rent and the rent income utilised for the maintenance of the trust. Defendant No.1 also wants to plead that Bhagwan Dass, father of the plaintiff and defendants had filed a suit challenging the will and claiming title to the property being adopted son of Dhunder Bhore. Suit was dismissed by Senior Sub Judge, Delhi. Appeal against the said judgment and decree was also dismissed. He further wants to plead that probate petition was filed in respect of the will executed by late Dhunder Bhore, which was also contested by Bhagwan Dass but probate was granted and thus Bhagwan Dass did not inherit any property of Dhunder Bhore. Dal Chand and others thus became owners of the property of Dhunder Bhore. Defendant No.1 also wants to set up a case that irrespective of probate having been granted the properties have continuously remained in his sole and absolute possession and thus he has acquired title to the properties by adverse possession.
7. The aforementioned application was vehemently opposed by the plaintiff, who pleaded that the application was malafide and had been made in order to wriggle out of the earlier admission. In case the amendment prayed for is allowed, it would not only change the nature of the defense and convert a plea of admission to that of denial but would also totally non-suit the plaintiff. Elaborate reply was filed on merits refuting the defendant's claim on merits of the pleas sought to be raised.
8. Learned Single Judge in his well reasoned order, after extracting the pleadings of the parties proceeded to dismiss the application holding that not only the application was highly belated but it was also malafide. The defendant cannot be permitted to withdraw the admission already made in the written statement so as to take away valuable right, which had accrued in favor of the plaintiff. This order is under challenge in the instant appeal.
9. It was vehemently contended by learned counsel for the appellant that while drafting and filing the earlier written statement, a fraud and misrepresentation had been played upon the appellant in order to defeat his legitimate right since he was sole and exclusive owner of the properties in question. It was also contended that there was no bar in law even to allow an amendment to written statement even if it had the effect of changing a plea of admission into a plea of denial, in case it is shown that the admission was erroneously made and was contrary to facts which were apparent on the basis of copies of decisions in civil suit and probate petition filed on the record.
10. There cannot be a dispute with the legal proposition that when the earlier statement was made under a mistake, the Court would be liberal in allowing the amendment and even may permit to change a plea of admission into a plea of denial. In case what is stated by the defendant/appellant in his application under Order 6 Rule 17 C.P.C. is taken at its face value that what was stated in the earlier written statement had been incorrectly stated either deliberately or even in ignorance of the true, facts, there is no doubt that there can be no legal bar of the defendant/appellant being permitted to amend the written statement thereby permitting to place correct and true facts before the Court but unfortunately, that is not the correct position. Learned Single Judge in the impugned order no doubt observed that the act of seeking amendment was malafide but did not elaborate the grounds for making this observation. As we have noticed the facts are writ large on the record due to which alone we are persuaded not to accept the appeal and interfere in the impugned order.
11. The defendant not only changed his lawyer before seeking amendments to the written statements, after a period of almost three years of the filing of the earlier written statement but also tried to mislead the Court about his illiteracy as if earlier written statement was not read over and explained to him. He appears to have deliberately changed his signatures for which a reference may be made to signatures appearing on the power of attorney filed earlier in favor of Shri W.C.Chopra, Advocate and the signatures affixed on the earlier written statement, on the power of attorney executed in favor of the newly appointed advocate and on application. The appellant in a very innocent manner tried to raise a plea of his earlier advocate not having apprised him of the contents of he written statement, which on the face of the record cannot be accepted, more especially in view of the contents of written statement filed by the defendant/appellant in an earlier suit titled as Kishori Lal v. Kali Charan and others. In that suit Kishori Lal had claimed a decree for permanent injunction against the plaintiff, defendants 1 and 2 and two others with respect to the property in question. In that suit the defendant/appellant in his written statement, (certified copy of which has been filed by the plaintiff on the record of learned Single Judge) specifically pleaded that he along with defendants 1 and 2 are the owners in possession of House No.5362-5364, Laddo Ghati, Paharganj. This written statement is dated 17.1.1974. In view of this statement on record, it is impossible to accept defendant/appellant/version that he would not have impaired true and correct instructions to his counsel, who drafted the written statement in this suit. What defendant/appellant is trying to plead is that the property neither belonged to Bhagwan Dass nor to plaintiff and defendants 1 and 2 but it belonged to some other persons in whose favor will had been made by his grand father and that he being in exclusive possession and Realizing rent had became owner by adverse possession. It is not only hard to believe but is highly improbable that the defendant did not impart correct instructions to his counsel to admit the claim of the plaintiff in view of what had been submitted by defendant in his written statement on 17.1.1974 in the suit filed by Kishori Lal. It appears that he defendant/appellant's intention became dishonest only after defendant no.2 expired and after the plaintiff filed application under Order 12 Rule 6 CPC seeking decree on admission since on the death of defendant No.2 leaving no other except the plaintiff and defendant No.1, no other derence remained available with him to resist plaintiff's suit. Proposed amendment thus sought by defendant seeking to repudiate clear admission is motivated to deprive the plaintiff of valuable right accrued to him and cannot be allowed in terms of the decision of the Supreme Court in M/s. Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s.Ladha Ram and Company .
12. In view of the above, we do not find any infirmity in the impugned order passed by learned Single Judge. Accordingly, the appeal is dismissed leaving the parties to bear their respective costs.