Bindu vs Aripurath Thachattu Chandran Nair

A. Muhamed Mustaque, J.—This original petition is filed challenging the order in I.A. No. 977 of 2010 in O.S. No. 586 of 2008 on the file of the Principal Munsiff''s Court-I, Kozhikode. The defendant in the suit is the petitioner and the respondents herein are the plaintiffs. The suit is for declaration and consequential injunction restraining the defendant from trespassing into plaint A schedule property or to use any portion of it as a way.

When the case was posted for trial, the defendant filed an amendment application to amend the written statement. The defendant sought amendment to the effect that plaintiffs have no right over the plaint schedule property. This version of the defendant appears to have been made with reference to the report submitted by the Commissioner on the matter. The learned Munsiff dismissed the application on the ground that the defendant had set up right of easement by necessity in the written statement which would amount to admitting the right of the plaintiffs over the plaint schedule property and therefore, such right cannot be taken away by way of amendment. It is also noted by the learned Munsiff that the Commissioner has not stated that pathway to the petitioner is outside the plaint A schedule property. Therefore, the learned Munsiff dismissed the application. Challenging the order, this original petition is filed.

Heard the learned counsel of the petitioner and the respondents.

The application for amendment was filed at the time when the case was posted for trial. The defendant also had filed an application in terms of proviso to Order VI Rule 17 of the CPC to condone delay occurred in filing the application for amendment. However, there is no reference of the above application in the impugned order. This Court, on verification through the Registry, obtained a report and finds that the said application has been allowed as per the order in I.A. No. 976 of 2010 on 28.05.2010.

Therefore, the only question now remains is whether amendment is necessary for the purpose of determining the real question in controversy between the parties. The learned counsel for the respondents/plaintiffs relied upon the judgment of this Court in Girish Vs. Janaki and Others, , wherein it was held that if the proposed amendment is meant to take away admission already made by the defendant in the written statement, such amendment cannot be permitted. It is true the position of the law as such is settled through various pronouncements of this Court and Hon''ble Supreme Court in S. Malla Reddy Vs. Future Builders Co-operative Housing Society and Others, and Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, . However, the question in this case is, can an admission of title alleged to have been made in the written statement be withdrawn by way of amendment.

An admission is a statement, which suggests any inference as to any fact in issue or relevant fact as laid down u/s 17 of Indian Evidence Act, 1872. Title over the property cannot be conferred or taken away by a statement made by the party. Therefore, any such statement can be withdrawn or can be corrected. Such admission, if any, always open to be corrected and by virtue of such correction, no prejudice is caused nor it will take away right of the petitioner if any over the property, see for similar views-judgment of this Court in Rahima Ummal Sara Ummal and Another Vs. Sarasamma, . The court below also found that reason for seeking amendment relied by the defendant with reference to the commission report is incorrect. When an application for amendment is filed, court below has to look into whether amendment is required for determining real issue in controversy. The court below need not embark upon an enquiry as to the veracity of the reasons stated in such application. If amendment is required for the determination of the real dispute in controversy, then application has to be allowed irrespective of the reasons on which the amendment is necessitated. Object of such amendment is to give O.P. opportunity to the parties to have decision on all point based on a cause of action. Therefore, this Court is of the view merely because the reason for amendment has been found untenable, dismissal of application is unwarranted.

In Ruhaila Beevi and others Vs. Suvarna Satyan, , it is held that, in case of amendment of a written statement, Courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case. Therefore, this Court is of the view the application filed by the petitioner/defendant as per I.A. No. 977 of 2010 is liable to be allowed.

In the result, this original petition is allowed with the following directions:

I.A. No. 977 of 2010 in O.S. No. 586 of 2008 on the file of the Principal Munsiff Court-I, Kozhikode is allowed.

The court below shall give an opportunity to the plaintiffs to file rejoinder. The plaintiff shall also be given an opportunity to adduce evidence including taking out a Commission for local inspection, if required, to meet the plea raised by the defendant by way of amendment.