9911796707
TMI Blog2007 (4) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... de herein above that by making the application for amendment of the written statement, admission was not at all withdrawn by the appellants nor a totally inconsistent plea was taken by the appellants in their application for amendment of the written statement, the High Court had failed to appreciate that by the proposed amendment, the appellants were not withdrawing their admission in respect of the half share in the ancestral property rather they only added that the plaintiff and defendant Nos. 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half share in the property of late Veersangayya. That apart, it appears from the record that the written statement filed by the appellants was before the death of defendant No. 1 (first wife of Appasao). After the death of defendant No. 1, when plaintiff and defendant Nos. 2 to 8 claimed themselves as heirs and legal representatives of defendant No. 1, the appellants sought amendment of the written statement challenging the legitimacy of plaintiff and defendant Nos. 2 to 8. In view of the discussions made herein above, we do not think that it was impermissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts who are defendants 8 to 14 in the suit are the heirs and legal representatives of Balasao (since deceased). The Plaintiff inherited one half share of the suit properties jointly with defendant Nos. 1 to 7, on the death of Appasao. Since the appellants had refused to partition the suit properties and deliver separate possession, the plaintiff filed the suit for partition and possession. 4. The defendant Nos. 1 to 7 who are respondent Nos. 2 to 8 in this appeal entered appearance in the suit and filed their written statement supporting the case of the plaintiff. After entering appearance in the suit, the appellants on 28th February, 2003 filed their written statement in which they admitted that the plaintiff with defendant No. 1 to 7 were entitled to one half share in the suit properties. Initially, an application for amendment of the written statement was filed by the appellants on 18th June, 2003, which was contested by the plaintiff. The said application was allowed by the Civil Judge, Senior Division, Kolhapur, but subsequently on a writ application filed before the High Court at the instance of the plaintiff, the order allowing amendment was set aside and the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a decision of this Court in the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. [1977]1SCR728 . According to the High Court, the decision in the case of Modi Spinning and Weaving Mills Co. Ltd. (supra) was a clear authority for the proposition that once a written statement contained an admission in favour of the plaintiff, by amendment, such an admission of the defendants, cannot be withdrawn and if allowed, it would amount to totally displacing the case of the plaintiff, causing irretrievable prejudice to him. Similarly relying on another decision of this Court in the case of Heera Lal v. Kalyan Mal and Ors. AIR1998SC618 , the High Court held that the amendment, if allowed, would displace the case of the plaintiff and his right to get the partition decree and, therefore, amendment was impermissible in law. Dissatisfied with this order of the High Court, this Special Leave Petition has been filed in respect of which leave has already been granted. 9. On behalf of the appellants, Mr. V.N. Ganpule, learned senior counsel contended, at the first instance, that the question of withdrawing admission made in written statement could not arise as the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bare perusal of the written statement would clearly show that the appellants have admitted one-half share of the plaintiff and defendant Nos. 1 to 7 in the suit properties in their written statement. Mr. Lalit also contended that the decision in Baldev Singh's case (supra) relied on by the learned Counsel for the appellants in support of his contention would not be applicable in the facts of this case. Therefore Mr. Lalit contended that the amendment of the written statement introducing an entirely different and inconsistent case cannot be allowed as it would displace the admission made in para 8 of the written statement and deprive the plaintiff of a valuable right already accrued to him on account of the admission. 11. Relying on the decision in the case of Heera Lal (supra) as relied on by the High Court in the impugned order, Mr. Lalit contended that the admission made in para 8 of the written statement cannot be washed out by an amendment of the written statement. Accordingly, Mr. Lalit invited us to hold that the High Court was fully justified in rejecting the application for amendment of written statement of the appellant in the exercise of its power under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249 may be taken note of. The Privy Council observed: All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit. (Underlining is ours) 15. 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 subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event . In that case this Court also held that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice. 18. Keeping these principles in mind, namely, that in a case of 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 latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement. 19. As noted herein earlier, Mr. Lalit placed strong reliance on the case of Heera Lal (supra) to contend that the admission made by the appellants in the original written statement in the facts and circumstances of the case could not at all be taken away. In our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, there is no question of taking inconsistent stand which would not have affected pre-judicially the plaintiff as wrongly assumed by the High Court. Keeping the aforesaid observations and also the facts involved in Heera Lal's case (supra) in mind, we are of the view that the decision in that case may not be of any help to respondents. 20. Coming back to the facts of the present case regarding amendment of the written statement, we find that the appellants had stated in para 8 of their original written statement that plaintiff and defendant Nos. 1 to 7 have got = share and defendant Nos. 8 to 14 have got = share in all the family properties and that the maternal aunts have also got share. By seeking incorporation of paras 8A and 8B and substitution of para 8 in the written statement, the appellants have maintained the admissions made by them in para 8 of the written statement but added a proviso or condition to the admission. Therefore, it was not a case of withdrawal of the admission by the appellants by making the application for the amendment of the written statement but in fact such admission was kept intact and only a proviso has been added. This, in our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, it must be held that in view of our discussions made herein above, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement. 23. As noted herein earlier, Mr. Lalit while inviting us to reject the application for amendment of the written statement as was done by the High Court had placed strong reliance on the case of Modi Spinning (supra). In that case, a suit was filed by the plaintiff for claiming a decree for ₹ 1,30,000 against the defendants. The defendants in their written statement admitted that by virtue of an agreement dated 7th April, 1967 the plaintiff worked as their stockists-cum distributor. After three years the defendants by application under Order 6, Rule 17 of the Code sought amendment of written statement by substituting paras 25 to 26 with a new para in which they took the fresh plea that plaintiff was a mercantile agent cum purchaser, meaning thereby that they sought to go beyond their earlier admission that the plaintiff was a stockist-cum-distributor. In our opinion, the present case can be distinguished from that of Modi Spinning case. In that case, the ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents are eligible to the said share in the property on proof of their legitimacy for which no irretrievable prejudice would be caused either to the plaintiff or to defendant Nos. 2 to 8. Accordingly, we do not think that Basavan Jaggu Dhobi could be applied in the facts of this case, which is clearly distinguishable. 24. Again in the case of Akshaya Restaurant v. P. Anjanappa AIR1995SC1498 this Court held that even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even after taking a definite stand in the written statement. However, in that decision the amendment of the written statement was rejected mainly on the ground that respondents had entered into an agreement for development of the land for mutual benefit of the parties and thereby the trial court came to a conclusion that it was not open to the respondent to explain whether the agreement was one of sale or for mutual benefit since the agreement was sub silentio in that behalf. In that decision this Court further held that the High Court in the exercise of power under Section 115 of the Code of Civil Procedure committed no material irregularity in permitting amen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
