Calcutta High Court (Appellete Side)
Md. Shafi vs Rashida Begum on 2 August, 2018
1 S/L. 18.
August 2, 2018.
MNS.
C. O. No. 2168 of 2018 Md. Shafi Vs. Rashida Begum Mr. Hiranmay Bhattacharyya, Mr. Tarak Nath Halder, Mr. Sagnik Chatterjee ...for the petitioner.
Ms. Mousumi, Mitra, Mr. Md. Sarwar Jahan, Ms. Nilofar Begum, Mr. Samrat Chaudhury, Mr. Ahshan Ahmed ...for the opposite party.
Affidavit-in-opposition filed in Court today be taken on record. The present challenge has been preferred by the defendant in a partition suit against an order, whereby the defendant/petitioner's application for amendment of written statement was rejected, primarily on the ground that an admission was sought to be withdrawn by such amendment.
Learned counsel for the petitioner argues that, although previously two such amendments were not pressed by the petitioner, in the previous amendments the petitioner had prayed for deletion of certain portions of the original pleadings and to introduce some new facts, which might have amounted to withdrawal of admission.
However, it is submitted, in the present amendment application the petitioner wanted to retain whatever pleadings were there in the original written statement but to add 2 some new facts in addition, by way of explanation to the admission, if any, made in the original written statement.
In this context, learned counsel for the petitioner cites a judgment reported at (2007) 5 SCC 602 (Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others), where it was inter alia held that the courts would be more liberal in allowing amendment of a written statement than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleadings in the written statement can also be allowed.
It is pointed out by learned counsel for the petitioner that the factual premise of the said judgment was somewhat similar to the present case, since in the said reported judgment, initially the share of the plaintiff along with defendant nos. 1 to 7 in the suit property were admitted. But subsequently, by amendment, the defendants sought to introduce the allegation that the plaintiff was an illegitimate child and as such was not entitled to any share in the property.
In the present case, initially it was admitted by the defendant that the plaintiff was the daughter of Wali Mohammed and Hafiza Khatoon, being born in their wedlock. Subsequently, by way of amendment the petitioner sought to introduce that the plaintiff was merely a foster daughter of Wali. As such, it was argued, the present amendment ought to have been allowed by the court below.
In controverting such arguments, learned counsel for the opposite party submits that even in the present amendment, the defendant/petitioner sought to delete a most vital admission made in pargaraph- 13 of the original written statement. In the said paragraph 3 of the original written statement, it was admitted that Wali begot one son, the defendant therein, and one daughter, the plaintiff therein, from his first wife Hafiza. Such portion was sought to be deleted in paragraph no. 4 of the schedule of the present amendment.
This apart, it is argued, the context of the present case was somewhat different from the judgment cited by the petitioner.
In the reported judgment, only the share of the plaintiff was admitted and subsequently an additional allegation of the plaintiff being an illegitimate child was sought to be introduced. However, in the present case, the defendant had categorically admitted that Wali had begotten the plaintiff as a daughter from his marriage with Hafiza. Such specific admission was now sought to be deleted and the concept of foster daughterhood sought to be introduced by virtue of the present amendment. As such, contrary to the reported judgment, in the present case, a specific admission was sought to be withdrawn by deletion. As such, this was not merely a case of explaining away a previous admission but the withdrawal of a categorical admission.
In this context, learned counsel for the opposite party cites a judgement reported at 2015 (10) SCC 203 (Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and others). In the said judgment, it was held inter alia that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment.
The proposition of law that even an admission can be withdrawn, as held in a previous judgement (Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay), was overruled by the said judgment.
A consideration of the present amendment reveals that the submissions of learned counsel for the opposite party are more acceptable than that of the petitioner. 4
It is evident that in the garb of the present amendment, certain vital lines comprising admission were sought to be deleted from paragraph - 13 of the written statement. Whereas in the written statement it was categorically admitted that the plaintiff was a daughter born in the wedlock of Wali and Hafiza, such admission was sought to be deleted on the one hand and on the other, a concept of the plaintiff being a foster daughter of Wali and Hafiza, was sought to be introduced. Such new facts, sought to be brought in by way of amendment, were mutually exclusive with the original pleadings in the written statement and went one notch higher than a mere attempt to explain away an admission. The proposed amendment in the present case would amount to withdrawal of categorical admission, which was squarely deprecated in Ram Niranjan Kajaria (supra).
A three Judges' Bench of the Hon'ble Supreme Court, upon consideration of the previous case law on the subject, specifically held in the said case that such a withdrawal of admission would not be permitted by amendment. As such, the trial court could not be held guilty of any jurisdictional error in passing the impugned order, rejecting such amendment.
Moreover, since previous two applications for amendment, filed in similar tune as the current one, were not pressed by the defendant/petitioner, the petitioner is also debarred, by application of the principle envisaged under Order XXIII of the Code of Civil Procedure, from vexing the court and the plaintiff again with a similar cause.
In the garb of explaining away previous statements, the present amendment withdraws a categorical admission going to the root of the case, thereby entirely displacing the plaintiff's case and causing prejudice beyond repair. 5
A third consideration, which is obvious is that the current amendment was made at a very belated stage without any proper explanation as to the delay in filing the same.
The current amendment is plainly vexatious and ought not to be admitted at this mature stage of the suit, thereby opening up a de novo trial.
As such, the impugned order need not be interfered with. Accordingly, C. O. No. 2168 of 2018 is dismissed on contest, without, however, any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)