IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION NO.28997 OF 2019 (GM-CPC) BETWEEN:
1. SRI.B.KUMARSWAMY S/O. LATE S BASAVALINGAIAH AGED ABOUT 55 YEARS RESIDING IN D.NO.2984/4 3RD FLOOR, 12TH MAIN INDIRANAGAR, HAL II STAGE BENGALURU – 560008.
2. SRI.B.CHANDRASHEKAR S/O. LATE S BASAVALINGAIAH AGED ABOUT 49 YEARS RESIDING IN D.NO.2984 GROUND FLOOR, 12TH MAIN INDIRANAGAR, HAL II STAGE BENGALURU – 560008.
3. SMT.B.SHASHIKALA D/O. LATE S BASAVALINGAIAH W/O SRI.D.N.NATARAJU AGED ABOUT 40 YEARS RESIDING IN D.NO.2984/3 1ST FLOOR, 12TH MAIN INDIRANAGAR, HAL II STAGE BENGALURU – 560008.
AND ALSO AT #74, SIDDAGIRI NILAYA 3RD CROSS, ANNAPOORNESHWARI LAYOUT ULLAL MAIN ROAD BENGALURU – 560056. … PETITIONERS (BY SRI M.B.NALGUND, SR. COUNSEL FOR SRI N.N.DAMODAR, ADVOCATE) AND:
1. MASTER K.M.NIKHIL S/O.SRI.K.S.MOHAN AGED ABOUT 20 YEARS 2. MASTER K.M.SOHAN S/O.SRI.K.S.MOHAN AGED ABOUT 15 YEARS BOTH THE RESPONDENT NOS.1 & 2 ARE RESIDING AT D.NO.MIG-17 II STAGE, K.H.B. HUDCO COLONY KUVEMPUNAGAR, MYSORE – 570 023.
SINCE RESPONDENT NO.2 IS A REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN SRI.K.S.MOHAN … RESPONDENTS (Sri P. NATARAJU, ADVOCATE FOR C/R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE IMPUGNED ORDER DATED 13.06.2019 ON I.A.NO.VII, PASSED BY THE HON’BLE SENIOR CIVIL JUDGE AND CJM AT CHAMARAJANAGAR IN O.S.NO.57/2015 (ANNEXURE-K) AND CONSEQUENTLY ALLOW THE IA NO.7 FILED BY THE DEFENDANTS/PETITIONERS HEREIN, UNDER ORDER VI RULE 17 R/W SEC.151 OF C.P.C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the defendants in a partition suit filed by the respondent-plaintiffs in O.S.No.57/2015 are knocking at the doors of writ court for laying a challenge to the order dated 13.06.2019, a copy whereof is at Annexure-K, whereby their application in I.A.No.7 filed under Order VI Rule 17 of CPC 1908 seeking leave to amend their Written Statement. The respondents having entered caveat through their counsel resist the writ petition.
2. Learned Sr. Advocate Mr.M.B.Naragund appearing for the counsel on record for the petitioners submits that the impugned order suffers from a vice of non-application of mind to the pleas taken up in the Written Statement as to the subject property is being self acquired, other pleas to the contra notwithstanding; a Co-ordinate Bench of this Court in petitioner’s R.F.A.No.179/2018 (PAR) vide judgment dated 18.12.2018 allowed their application for production of additional documents, having set aside the judgment & decree impugned therein; these documents were intended to be produced inter alia for showing that the subject properties are not the joint family properties; even this has been ignored by the Court below; in any circumstance the Indian Evidence Act, 1872 does not treat the admissions as conclusive proof of the matter admitted; even this also has not been adverted to by the learned trial Judge. So arguing he seeks allowing of the writ petition.
3. Learned counsel for the respondents Mr. P.Nataraju vehemently contends that the impugned order declining leave to amend the Written Statement is perfectly in accord with what the Apex Court said in the case of HEERA LAL vs. KALYAN MAL, AIR 1998 SC 618, inasmuch as granting the leave would eventually result into withdrawing the admissions given in the pleadings; merely because additional documents are permitted to be produced, that itself does not sanctify the claim for grant of leave to amend the pleadings to the disadvantage of the respondents; the Court below having exercised the discretion in accordance with the rules of reason & justice, the impugned order does not merit deeper examination at the hands of this Court. So contending he seeks dismissal of the writ petition.
4. Having heard the learned counsel for the parties and having perused the petition papers, relief needs to be granted to the petitioners because:
(i) suit in O.S.No.57/2015 is for a decree of partition & separate possession of the properties; the Written Statement is filed by the petitioners on 26.10.2015; at para 8 thereof the petitioners have specifically denied that the properties are the ancestral and joint family properties; at para 14 they have stated that these properties were the exclusive acquisition of Smt.Kamalamma; it is true that there are some paragraphs where a contra stand is also taken; therefore these pleas in the Written Statement cannot be straightaway construed as admission, which otherwise would have amounted to; that was not the position in the decision of the Apex Court supra wherein there were unconditional admissions as to the nature of property;
(ii) Sarkar on Law of Evidence, 19th Edition (LexisNexis) at page 915 states that Section 31 of the Indian Evidence Act, 1872 provides that admissions whether written, oral, or implied from conduct or assumed character are not conclusive of the matters admitted i.e., although they are good evidence against the party making them or his representatives in interest, the matter is not concluded and he is at liberty to prove that they were made under a mistake of law or fact, or were untrue or were made under threat, inducement or fraud, unless they operate as estopples under the provisions contained in ss.115-117, that is, unless his opponent has been induced to alter his condition by acting upon such admissions to his detriment;
(iii) it is a settled legal position that it is open to a defendant in a suit to take up inconsistent plea in the Written Statement; the Apex Court in the case of BALDEV SINGH vs. MANOHAR SINGH, JT 2006(7) SC 139 at para 15 has observed: “This being the position, we are therefore of the view that inconsistent plea can be raised by Defendants in the written statement although the same may nto be permissible in the case of plaint, in the case of Modi Spinning and Weaving Mills Co. Ltd. and Anr. V. Ladha Ram and Co. (1976) 4 SCC 320, this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that Defendants/Appellants are not allowed to take inconsistent pleas in their defence”. There is nothing either in the Civil Procedure Code or in the Evidence Act, that prevents a party from pleading alternate pleas, whether consistent, complimentary or inconsistent and conflicting. (Dadabhau S. Ghodke v. Mohanlal K.Agrawal, 2003 Vol 105(1) Bom LR 676 (679) (Bom); and, (iv) no prejudice would be caused to the other side by granting leave to amend the Written Statement in as much as the production of additional evidence permitted by this Court in the aforesaid RFA was also to show the nature of the property in the suit; there is no injury that cannot be remedied by imposition of cost and therefore, whatever little prejudice the respondents are likely to suffer by amendment of the Written Statement can be set right by award of costs;
In the above circumstances, the writ petition is allowed; the impugned order is set at naught; petitioner’s application in I.A.No.7 having been favoured, the leave to amend their Written Statement is accorded subject to they paying a cost of Rs.2,500/- to the contesting respondents, each on or before next date of hearing of the suit, failing which the impugned order stands resurrected. All contentions are kept open.
Sd/- JUDGE KTY