IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.28062 OF 2018 (GM-CPC) Between:
1. Sri Ashwathanarayana, S/o. late Byatarayappa, Aged about 55 years, R/at Nidagatta Village, Kasaba Hobli, Santhehalli Post, Malur Taluk, Kolar District – 576 101.
2. Sri Sathyanarayana, S/o. late Byatarayappa, Aged about 48 years, R/at Nidagatta Village, Kasaba Hobli, Santhehalli Post, Malur Taluk, Kolar District – 576 101.
… Petitioners (By Sri Vigneshwar S. Shastri, Adv.) And:
1. Smt. Kanthamma, W/o. T. Gopalaiah, Aged about 52 years, R/at Nidagatta Village, Kasaba Hobli, Santhehalli Post, Malur Taluk, Kolar District and also R/at Bovicolony, Near KSRTC Bus Stand, Kolar District – 576 101.
2. Chikkanarasappa, S/o. late Kadireppa, Aged about 97 years, R/at Nidagatta Village, Kasaba Hobli, Santhehalli Post, Malur Taluk, Kolar District – 576 101.
3. Smt. Lakshmamma, W/o. Channarayappa, Aged about 56 years, R/at Gangapura Village, Nandagudi Hobli, Hosakote Taluk, Bengaluru District – 563 125.
... Respondents (By Sri G.R. Anantharam, Adv. for R-1 V/o. dated 18.03.2019 R-2 is deleted) Notice to R-3 is held sufficient) *** This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 14.06.2018 passed on I.A.No.21 in O.S.No.24/2011 on the file of the Senior Civil Judge at Malur as per Annexure-E and etc..
This Writ Petition coming on for Orders this day, the court made the following:
ORDER Defendants No.2 and 3 have filed the present writ petition against the order dated 14.06.2018 made in O.S.No.24/2011 on the file of Senior Civil Judge at Malur dismissing I.A.No.21 filed under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure to amend the written statement.
2. Respondent No.1-plaintiff has filed suit for declaration and permanent injunction mainly on the basis of the family settlement deed/partition deed said to have been executed by defendant No.1 by drawing the schedule ‘A’ and ‘B’. ‘A’ schedule properties fallen to the share of defendants No.2 and 3 since their mother was not alive and ‘B’ schedule properties are fallen to the share of plaintiff. ‘A’ schedule properties are exclusively enjoyed by defendants No.2 and 3 and joint katha was effected in their names. Defendant No.3 filed written statement denying the averments made in the plaint and contended that the defendants No.2 and 3 are respectable persons in the locality, they could not colluded with the defendant No.1. Either the plaintiff or any other persons have no manner of right, title, possession or whatsoever over the suit schedule properties. Even today the defendant No.1 is in actual possession and enjoyment of the same lands. Defendants No.2 and 3 are not the concerned parties in this case and further contended that defendant No.1 was the absolute owner of the suit schedule property and other properties. Defendants No.2 and 3 are the only legal heirs of defendant No.1 and sought for dismissal of the suit.
3. When the matter was posted for issues, at that stage, defendants No.2 and 3 filed an application under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure on 02.07.2012 to delete para 6 and add new para 6 and insert para 6A and 7 and delete original para 8 of the written statement and add new para contending that defendants No.2 and 3 have hurriedly filed their written statement. The suit schedule properties were belong to their father and they have not specifically stated in their written statement that how their father got same in his name. They have also not stated in detail about their joint family affairs. The said application was resisted by the plaintiff by filing objections and contended that the application for amendment is not maintainable and is liable to be dismissed. The defendant No.3 who sworn the affidavit has willfully suppressed the fact and contended that it is nothing but the counter blast to the application filed by the plaintiff under Order 15 Rules 1 and 2 of Code of Civil Procedure, in which the plaintiff has raised a plea that there is no lis between the parties. The present application is after thought and there is no bonafide reasons averred in the application therefore, sought for dismissal of the application. The trial Court considering the application and objections by the impugned order dated 12.06.2018 dismissed the application filed by defendants No.2 and 3 under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure for amendment of written statement. Hence the present writ petition is filed.
4. I have heard the learned counsel for the parties to lis.
5. Sri Vigneshwar S. Shastri, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application filed under Order 6 Rule 17 r/w Section 151 of Code of Civil Procedure for deletion of para 6 and 8 and insertion of new para 6, 6A, 7 and 8 with regard to affairs of the family and how defendant No.1 became the owner in possession of the suit schedule property and to give detailed facts which are no way prejudice the case of the plaintiff. Therefore, the trial Court ought to have allowed the application filed by the defendants No.2 and 3.
6. He further contended that it is well settled law that the defendant can take any inconsistent plea in his written statement without prejudicing the case of the other side and it will not take away the right of the plaintiff. Ignoring the same, the trial Court rejected the application which is erroneous and contrary to material on record.
7. In support of his contention, learned counsel has relied upon the Judgment of the Hon’ble Supreme Court in the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others reported in ILR 2007 KAR 2590 to the effect that the Amendment of written statement- Substitution of defence or taking of inconsistent plea through amendment is permissible. Therefore, he sought to allow the writ petition.
8. Per contra Sri G.R. Anantharam, learned counsel for respondent No.1 sought to justify the impugned order and contended that the proposed amendment sought by defendants No.2 and 3 is nothing but taking away the admission already made in the original written statement which is impermissible in law. He further contended that the proposed amendment is after lapse of 14½ years and the application has to be dismissed as it is highly belated. Ultimately it is for the plaintiff who came before the Court for declaration and permanent injunction to prove his case based on the oral and documentary evidence on record. In the name of inconsistence plea by way of amendment will take away the admission already made. The proposed amendment is altogether introducing a new case which is impermissible and it will change the nature of the suit and will effect the case of the plaintiff. Therefore, the trial Court has rightly dismissed the application of the defendants.
9. In support of his contentions, learned counsel for respondent No.1 has relied upon the following Judgments of the Hon’ble Supreme Court:
i) Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria & Others reported in (2015) 10 SCC 203 to the effect that the Amendment of pleadings-Admission made in pleadings cannot be permitted to be withdrawn by amendment.
ii) Modi Spinning and Weaving Mills Co.Ltd. & Another Vs. Ladha Ram & Co. reported in AIR 1977 SC 680 (Full Bench) to the effect that the Amendment of written statement-Entirely different case sought to be introduced by way of amendment-likely prejudice to the other parties cannot be allowed.
iii) Heerala Vs. Kalyan Mal & Others reported in AIR 1998 SC 618 to the effect that Withdrawal of admission-Where the defendants have admitted that part of the property was joint family property but later on such admission sought to be withdrawn, by amendment of written statement is impermissible.
iv) Bharat Coking Coal Ltd Vs. Raj Kishore Singh & Another reported in AIR 2000 SC 3577 to the effect that the Nature of dispute by way of application for amendment will drastically changed the nature of the dispute. Such amendment cannot be allowed.
Therefore, sought to dismiss the present writ petition.
10. Having heard learned counsel for the parties, it is not in dispute that the plaintiff filed suit for declaration and permanent injunction mainly on the basis of unregistered family Settlement Deed/Partition Deed dated 28.03.1985 and sought for declaration and permanent injunction. Though defendant No.1 filed written statement, since cost was not paid which was ordered, the written statement filed by him came to be struck of. Defendants No.2 and 3 have filed written statement on 06.02.1998 denying the plaint averments and contended that the application filed by the plaintiff is not maintainable. The plaintiff in para 4 of the plaint categorically pleaded how he became the owner by virtue of unregistered family deed/partition deed dated 28.03.1985. The defendant No.3 in para 2 of the written statement specifically stated that the averments made in para 4 of the plaint do not reflect the correct affairs of the family. The plaintiff is put to strict proof of the same. By way of amendment, defendants want to delete the original written statement to the effect that the plaintiff has suppressed the true facts and filed the suit in order to knock off the valuable properties of defendant No.1. Defendant No.1 is the absolute owner of the suit schedule properties and other properties. The defendants No.2 and 3 are only legal heirs of defendant No.1.
11. The amendment for deletion of para 6 is nothing but taking away the admission made in para 6 by defendant No.3 to the effect that defendant No.1 is the absolute owner in possession and enjoyment of the suit property and defendants No.2 and 3 are the legal heirs of defendant No.1 which is impermissible. Therefore, question of deletion would not arise and question of insertion of para 6 also does not arise. Defendants No.2 and 3 want to insert para 6A to the effect that defendant No.1 has gifted some of his self acquired properties to plaintiff after her marriage, she along with defendant No.2 created unregistered vyavastapatra dated 28.03.1985 without knowledge of defendant Nos.2 and 3 and their mother as the defendant No.2 is an illiterate and defendant No.3 was a Student at that time. Moreover there was no need to defendants No.2 and 3 to beget such kind of illegal document, as the successor of the estate of defendant No.1 also. They also want to insert para 7 about the proceedings initiated by the Revenue Authorities and ultimately the observation made while rejecting the writ petition is that “The Civil Court is required to consider the claim of the parties on the basis of the evidence that may be placed before it and without being influenced by the observation made in the course of the order impugned and also the disputed entries”. Defendants No.2 and 3 want to delete the original para 8 to the effect that the plaintiff after her marriage had resided with her husband along with her children at Bovi Colony, Kolar Town. The plaintiff filed the above false suit in support of her sons namely Laxminarayana and Vijayakumar as the said Vijayakumar is advocate to knock off the valuable properties of the defendant No.1 to 3 though she has not having possession and equal right over the properties. Plaintiff is the permanent resident of Kolar as stated supra. By way of amendment, defendant No.3 wants to insert altogether new facts. Therefore, withdrawing para 8 which is impermissible as held by Hon’ble Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd and Another stated supra.
12. In so far as para 6A and 7 sought by the defendants is only with regard to revenue proceedings and how the vyavastapatra dated 28.03.1985 i.e., alleged family settlement was created. Mere insertion of inconsistent statement will not take away the admission made in the pleading. It is well settled law that the amendment of Pleadings/Admissions made in the pleadings cannot be permitted to be withdrawn by way of amendment but however, amendment in written statement can be sought for introduction of new fact or explanation or clarification of admission. The application filed for insertion of para Nos.6A and 7 is nothing but explaining and clarifying the admissions made by the defendants in the earlier written statement. Mere insertion of said paragraphs will no way prejudice the case of the plaintiff.
13. The Hon’ble Supreme Court while considering the provisions of Section 6 Rule 17 of Code of Civil Procedure in the case of Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and Others reported in (2015) 10 SCC 203 wherein it has been held as under;
“20. On amendments generally, in the decision reported inRevajeetu Builders and Developers v. Narayanaswamy and Sons and others[5], after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows:
“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 malafide; (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 6 Rule 17. These are only illustrative and not exhaustive.”
21. In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendant Nos. 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted.
22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others[6]. To quote Paragraph-27:
“27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.” (Emphasis supplied) 23. We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled.
24. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that:
“11. …. Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 when the defendant No. 5 was only 2 years and the defendant No. 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. The defendant No.5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now members of the joint family. In the marriage of the two sisters of the defendant no.5 Kusum and Bina (now after marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations.”
25. In the counter affidavit filed before this Court, Defendant Nos. 5 and 12 have stated as follows:
“The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad used in the arbitration proceedings where she was not a party admitting relinquishment of the share of her husband and thereafter admitting such letter in the original pleading is not what the answering respondents want to resile and/or withdraw from but by the present amendment had only ought to explain the circumstances in which such letter has been written.”
26. In the above circumstances, we do not intend to make the suit filed in the year 2005 otherwise infructuous. The application for amendment withdrawing the admissions made in the written statement on relinquishment of the claim to the suit property by Defendant Nos. 5 and 12 is rejected. However, we, in the facts and circumstances of the case, are of the view that Defendant Nos. 5 and 12 should be given an opportunity to explain/clarify the admissions made in the written statement. Accordingly, Defendant Nos. 5 and 12 are permitted to file an application within one month from today limiting their prayer only to the extent of explaining/clarifying the disputed admissions in the written statement which will be considered on its merits and in the light of the observations made herein above.
27. Though the learned Counsel for the appellant vehemently pressed for costs, we reluctantly refrain from passing any order in that regard. After all, it is a suit for partition of the family property. At any stage, the parties can have a change of heart and ignore the law or facts or other technicalities and reach an amicable settlement.
28. The appeals are partly allowed as above. The impugned Judgment will stand modified to the extent indicated herein above.
29. There shall be no order as to costs.”
14. Defendants by way of paragraph Nos.6 and 8 tried to insert some new facts which will take away certain admissions already been made. So far as insertion of para Nos.6 and 8, the prayer sought is rejected and so far as insertion of para Nos.6A and 7 which are clarification in nature and which will no way prejudice the case of the plaintiff, moreover, ultimately it is for the plaintiff to establish his case based on the oral and documentary evidence on record. Defendants filed counter claim claiming that the suit schedule property belong to them and defendant No.1 is the owner and defendants No.2 and 3 are the legal heirs of defendant No.1. Paragraps No.6A and 7 are only clarification in nature. Therefore, the trial Court ought to have allowed the application for amendment with regard to the said paras. Same has not been done in the present case.
15. The proposed amendment as sought for is in the nature of clarification and is imperative for proper adjudication of the case. The amendment sought is bonafide and will not cause prejudice to other side. Refusing the prayer sought causes injustice and will lead to multiplicity of proceedings. The proposed amendment constitutionally and fundamentally will not change the nature and the character of the suit.
16. Learned counsel for petitioner also relied upon the Judgment of this Court made in Civil Revision Petition No.1375/1999 to the effect that it is significant to note that defendants do not deny the existence of settlement deed. But sets up a plea that it was obtained by practicing fraud and by mis- representation, mis-representation appears to be that both the plaintiff and defendants No.2 and 3 told the first defendant that his signatures are required for insurance purpose and so representing obtained his signatures on blank paper. This is a matter which the trial Court has to consider after trial and at the stage of final disposal of the suit.
17. In view of the aforesaid reasons, the writ petition is allowed in part. The application filed for amendment of written statement is also allowed in part. The order of the trial Court is quashed only in so far as insertion of para Nos.6A and 7 and in so far as deletion of para Nos.6 and 8 and insertion of new paras in its place, the order of the trial Court is confirmed.
18. The application filed by the defendants for amendment of written statement for insertion of para Nos.6A and 7 is allowed. It is also relevant to mention here that the application filed is after lapse of 14½ years. Admittedly trial is not yet commenced in the present case. It is always open for the plaintiff to cross-examine the defendants No.2 and 3 with regard to amended para Nos. 6A and 7.
19. All the contentions raised by both the parties are kept open and to be urged before the trial Court at the time of adjudication of the suit.
20. Any observations made by this Court while considering the application for amendment of the written statement in part shall not come in the way of either of the parties to establish their respective case before the trial Court based on the oral and documentary evidence to be adduced and produced by both the parties in accordance with law.
21. Since the suit was filed in the year 1998 and we are in 2019, the trial Court is directed to dispose the suit expeditiously in accordance with law, subject to Co-operation of the parties to the lis.
Ordered accordingly.
Sd/- JUDGE PN/-