Heard Shri Ashutosh Srivastava, learned counsel for the petitioners as well as Shri K. Ajit assisted by Sri Arvind Srivastava, learned counsel for the respondents.
The defendant petitioners have approached this Court challenging the order dated 24.02.2009 passed by the Additional District Judge, Court No. 2, Jaunpur in Civil Revision No. 179 of 2007 setting aside the order dated 10.10.2007 passed by the court of first instance allowing the petitioners' application for amendment of the written statement.
The plaintiff/respondent Nos. 1 and 2 filed Suit No. 426 of 1987 for permanent injunction restraining the petitioners and other defendant from interfering in the possession and enjoyment of the suit property as shown in the plaint map. The parties are related to each other and suit property was partitioned amongst the ancestors of the parties by mutual consent, the defendants began to interfere in the land that fell in the share of the plaintiffs and hence the suit.
The petitioners who were defendant nos. 2 and 3 in the aforesaid suit filed their written statement denying the allegations in the plaint. Subsequently, the written statement was sought to be amended which was contested by the respondent nos. 1 and 2. The Civil Judge (Senior Division) City Jaunpur allowed the amendment with cost. Being aggrieved, the respondent nos. 1 and 2 assailed the order in Civil Revision No. 179 of 2007, the revisional court allowed the revision and set aside the judgment and order of the trial court stating that the proposed amendment was in fact a second written statement and could not be permitted.
Submission of learned counsel for the petitioners is that the trial court having jurisdiction, exercised its discretion, allowing the amendment of the written statement and it does not suffer from any illegality or jurisdictional error warranting interference in revision. The revisional court erred in holding that the petitioners could not withdraw the admission made in written statement, whereas, the law is otherwise. The petitioners only tried to explain by pleading in the form of an amendment the averments made in written statement.
In support of his submission, learned counsel for the petitioner has relied upon Panchdeo Narain Srivastava Versus Km. Jyoti Sahay and another1, Usha Balashaheb and others Versus Kiran Appaso Swami and others2, Sumesh Singh Versus Phoolan Devi and others3 and Sushil Kumar Jain Versus Manoj Kumar and another,4.
In rebuttal, Sri K. Ajit, learned counsel for the respondents submits that the amendment is malafide based on the theory of the mother informing the petitioners of the facts, accordingly the amendment was sought to be made, whereas, the petitioner no. 2, Deepak Kumar is a practicing Advocate in Jaunpur, similarly petitioner no. 1, Anand Kumar is an Assistant Teacher in Intermediate College in Jaunpur, hence, it is unimaginable that the petitioners had no knowledge regarding the case prior to the information received from their mother. It is further contended that the parties are descended of one Gopal and partition between the parties and other proforma respondents had already taken place; an earlier suit for partition, with regard to the landed property in Village Katahari of District Jaunpur, was decreed declaring half share of landed property between the petitioners and proforma respondents, the decree was not challenged and had attained finality. Thereafter, Suit No. 383 of 1987 was filed by the answering respondents against the petitioners for partition of groove land which was decreed on 07.01.1984 declaring half share of the petitioner and the answering respondents.
The present suit is suit pertaining to the house property which was partitioned between the parties and are enjoying the possession of their respective shares. The judgment and order passed by the revisional court is legal as it was not open for the petitioners to have resiled from their admission regarding partition of the suit property, the amendment amounts to withdrawal of the admission regarding partition and sets up a new case for repartition of the entire property which is not permissible.
In support of his submission, learned counsel for the respondents has relied upon M/s Modi Spinning and Weaving Mills Co. Ltd, and another Versus M/s Ladha Ram and Co.5, Gautam Sarup Versus Leela Jetly and others6, and Jafir Ahmad Versus Mehdi Hasan and another7.
Rival submissions fall for consideration.
In Sushil Kumar Jain (supra), the Hon'ble Supreme Court after considering the earlier judgments held that principles governing amendment of plaint and written statement are not same, in case the defendants seeks to only elaborate and clarify the earlier averment and confusion made in the 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 the written statement even by taking inconsistent pleas or substituting or altering his defence, para Nos. 13, 14 and 15 of the aforesaid judgment are as follows:-
"13. 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.
"15......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."
(Refer Baldev Singh & Ors. vs. Manohar Singh & Anr.8).
14. Similar view has also been expressed in Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. AIR 2007 SC 1663. 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 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.
15. Keeping these principles in mind, let us now take up the question raised before us by the learned counsel for the parties. As stated herein earlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Panchdeo Narain Srivastava Vs. K. Jyoti Sahay AIR 1983 SC 462, while considering this issue, held that the admission made by a party may be withdrawn or may be explained."
In Modi Spinning weaving Mills Co. Ltd. (supra), the Supreme Court held that inconsistent pleas can be made in pleadings but the effect of substitution seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement will irretrievably prejudice the plaintiff by denying opportunity of extracting the admission from the plaintiff. Para nos. 7 and 10 are as follows:-
"7. The trial court rejected the application of the defendants for amendment. One of the reasons given by the trial court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial court said that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law." The trial court held the application for amendment to be not bonafide.
10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 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."
In Gautam Sarup (supra), the Supreme Court considering the earlier judgments pertaining to amendment held that categorical admission cannot be resiled but can be explained or clarified. Para nos. 22 and 23 are reproduced as follows:-
"22. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.
23. An explanation can be offered provided there is any scope therefor. A clarification may be made where the same is needed.
We will assume that despite the amendments made by the Code of Civil Procedure (Amendment) Act, 1976, amendment of pleadings being procedural in nature, the same should be liberally granted but as in all other cases while exercising discretion by a the court of law, the same shall be done judiciously."
This Court in Jafir Ahmad (supra) relying upon the Apex Court's decision reiterated the principle that categorical admissions cannot be resiled. Para 7 is reproduced as follows:-
"7. By the proposed amendment, in the case in hand, the defendant-petitioner wanted to withdraw the clear admission made in the written statement that three shops were constructed on the land which came into his share through mutual settlement by stating that all the six shops have been constructed on a different land in 1988. The proposed amendment clearly amounts to withdrawal of the admission made in the written statement and thus could not have been allowed in view of the law laid down by the Hon'ble Apex Court on this point. Thus the lower appellate Court committed no illegality in rejecting the amendment application which may require any interference by this Court."
Applying the law, in the facts of the present case, in paragraph 5 of the written statement, it was stated that the parties have half share each which is subject to the averments made in the additional plea and in paragraph 6 conditional acceptance was made regarding partition and in the additional plea the factum of share and partition was not disputed but only portion of the suit property falling in the the share of the plaintiffs was disputed. It was admitted that the partition had taken place before the abolition of zamindari.
The amendment of paragraph 5 and 6 sought to be made denied the partition as well as half share between the parties and accordingly additional pleas was also sought to be amended. The revisonal court after considering the amendments proposed to be made came to the conclusion that categorical admissions made in respect of partition as well as half share was a complete resile of admission and a new case has been set up, the amendment could not be said to be an explanation of the admissions made earlier and is not an alternative plea, if such an amendment is allowed the respondents/plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The amendment does not appear to be bonafide as partition of the suit property had taken place before the Zamindari abolition and possession of respective share of the suit property has continued as such; under the garb of the amendment petitioner seeks a re-partition of the property.
The Court does not find any illegality or jurisdictional error exercised by the revisional court in disallowing the amendment of the written statement. The writ petition is, accordingly, dismissed. No order as to costs.
Order Date :- 10/07./2014 kkm