C.R. Channabasappa vs R. Rajkumar and Others

Aravind Kumar, J.—Heard Sri. S.H. Nagarajappa, learned counsel appearing for petitioner and Sri. R. Narayan, learned counsel appearing for respondent Nos. 1 to 3(A). Respondent No. 4 is served and unrepresented.

Petitioner, who is defendant No. 3 in O.S. No. 3094/2008 is seeking for quashing of order dated 01.06.2012, Annexure-J, whereunder application - I.A.VI filed for amendment of written statement has been dismissed on the ground that no satisfactory reason has been assigned by defendant No. 3 to permit him to amend the written statement and also on the ground that proviso to Order VI Rule 17 CPC places an embargo on the Court to allow such amendment unless the jurisdictional fact as envisaged therein, is found to be existing, such amendment should not be allowed.

It is the contention of the Sri. Nagarajappa, learned counsel appearing for petitioner that trial Court erred in dismissing the application without considering the fact that trial had not yet commenced and it had lost sight of the fact that amendment of pleadings can be allowed at any stage including the appellate stage, if the conditions prescribed under proviso to Order VI Rule 17 CPC is satisfied. He would elaborate his submission by contending that defendant No. 3 intended to place on record the specific denial of plaint averments and to ensure that no technical plea is being raised at the time of cross-examination of plaintiff and to stave off such technical pleas being raised, amendment of written statement had been sought for. Hence, he prays for allowing the writ petition.

Per contra, Sri. Narayan, learned counsel appearing for respondent Nos. 1 to 3(A) would support the impugned order and rely upon the judgment of Hon''ble Apex Court in the case of Vidyabai and Others Vs. Padmalatha and Another, to contend that without proper explanation for delay in raising such plea not being offered. Trial Court had rightly rejected the application and as such he prays for dismissal of the writ petition.

Having heard the learned Advocates appearing for parties and on perusal of records it would indicate that after service of suit summons third defendant, who is a purchaser of suit schedule property had appeared and filed his written statement contending inter alia that he is the bonafide purchaser. First defendant from whom third defendant purchased suit schedule property has also filed written statement denying the averments made in plaint and has supported third defendant.

On the basis of pleadings trial Court has framed issues and specifically issue No. 4 relates to third defendant proving that he is a bonafide purchaser of suit schedule property from first defendant under the sale deed dated 11.06.2008. In fact, third defendant in paragraph 2 of original written statement has specifically pleaded as to how he is a bonafide purchaser of suit schedule property.

Issues being framed on 28.09.2011, an application for amendment of written statement came to be filed by third defendant on 13.03.2012. At that stage, trial had not yet commenced. Application for amendment, which is at Annexure-G would indicate that third defendant is attempting to virtually file a fresh written statement. Application for amendment of written statement stands on a different footing than that of an application for amendment of plaint. Defendant in suit can raise inconsistent pleas as also alternate pleas. On the ground that there is inconsistent pleas between written statement already filed and the proposed written statement, application for amendment cannot be refused. For this proposition the law laid down by Hon''ble Apex Court in the case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., can be looked up.

While considering an application for amendment of written statement a liberal approach will have to be adopted by the Courts than it adopts while considering an application for amendment of plaint. As held by the Hon''ble apex Court in the case of Sushil Kumar Jain Vs. Manoj Kumar and Another, .

In the instant case, as noticed hereinabove, immediately after framing of the issues and before commencement of trial, application in question was filed. As rightly pointed out by Sri. Narayan, learned counsel appearing for respondent Nos. 1 to 3(A), affidavit supporting the application for amendment is vague. It has also been stated by third defendant that substantial plea has been raised in the written statement already filed. The prime reason assigned by third defendant to seek for amendment is he could traverse the facts or averments made in the plaint in detail due to oversight.

The suit in question is filed for partition and separate possession. First defendant is the person who has sold the property to third defendant. Second defendant is also sailing with third defendant. He has asserted his right to alienate the property on the ground that it is a self acquired property. Though under issue No. 4 burden has been cast on third defendant to prove that he is a bonafide purchaser, his right to cross-examine the plaintiff to demolish the case of plaintiff would still be available to him despite the fact that first defendant is contesting the suit. On the ground there being no plea raised by first defendant, third defendant cannot be prevented from cross-examining plaintiffs on the issue of proving that suit schedule property is not a joint family property. To avoid any such technical pleas being advanced, defendant has now by way of amendment of written statement intends to deny the plaint averments. It is no doubt true that proposed amendment is virtually fresh written statement and as such, material averments which would have bearing on the defence of third defendant alone would suffice to be brought on record and not only to prove issue No. 4 but also to disprove other issues, the burden of which is cast on plaintiff.

Hon''ble Apex Court in the case of Sushil Kumar Jain Vs. Manoj Kumar and Another, has clearly held that the admission made in the written statement can be explained by way of amendment namely, by way of amplification. It has been held as under:

"12. 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. Km. Jyoti Sahay and Another, , while considering this issue, held that the admission made by a party may be withdrawn or may be explained. It was observed in paragraph 3 of the said decision as follows:--

"An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment, an admission of fact cannot be withdrawn................."

In view of our discussions made hereinabove and applying the principles laid down by this court in the aforesaid decisions, we are therefore of the view that the High Court as well as the learned Rent Controller had acted illegally and with material irregularity in the exercise of its jurisdiction in not allowing the application for amendment of the written statement of the appellant."

The main thrust of the argument of Sri. Nagarajappa, learned Advocate appearing for petitioner is that proviso to Order 6 Rule 17 CPC puts an embargo namely, once the issues are framed amendment should not be permitted. He has relied upon the judgment of Hon''ble Apex Court in the case of Vidyabai and Others Vs. Padmalatha and Another, and as such, he submits that in view of framing of issues, trial is deemed to have commenced and specifically he relies upon paragraph 12 of Vidyabai''s case which is reproduced herein for immediate reference.

"12. Reliance, however has been placed by Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., , wherein it was opined:

"17. Before we part with this order, we may also notice that proviso to Order 6, Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6, Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6, Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."

It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence."

Hon''ble Apex Court while explaining the proposition of Law laid down in Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., has held that it is not an authority for the proposition that trial would not deemed to have commenced on the date of first hearing. In that case, as noticed, documents were yet to be filed and therefore it was held that trial did not commence. As such, on facts, proposition of law laid down in Baldev''s case came to be distinguished in Vidyabai''s case.

In Baldev''s case, Hon''ble Apex Court while considering import of the words "commencement of trial" as used in proviso to Order 6 Rule 17 CPC, held that it has to be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.

Keeping above principles in mind, when the facts on hand are examined, as noticed herein above and at the cost of repetition, it requires to be noticed that after framing of issues, plaintiff in the instant case had not tendered his evidence as on the date of filing of application for amendment. In that view of the matter, principles laid down in Vidyabai''s case cannot be held to be applicable in its entirety to the facts on hand since facts obtained in Vidyabai''s case would indicate that parties had filed their respective affidavits in lieu of their examination-in-chief and dates had been fixed for cross examination and as such, in the said background, words "commencement of trial" came to be interpreted. Whereas, in the facts on hand, it would indicate that affidavit in lieu of examination-in-chief was yet to be filed as on the date of filing of proposed amendment. Hence, Vidyabai''s case would not assist respondent/plaintiff.

Now turning my attention as to whether proposed amendment has to be allowed in its entirety or partially in the background of pleadings already available on record and also on the basis of issues framed by trial Court, it would suffice if third defendant is permitted to amend written statement by incorporating paragraphs 8, 9 and 18 of the proposed amendment as found in I.A. No. 6 (Annexure-G) and to that extent alone, third defendant would be entitled to amend the written statement.

For the reasons aforestated, I proceed to pass the following:

"(1) Writ petition is hereby allowed in part.

(2) Order passed by V Addl.City Civil Judge, Bengaluru on I.A. No. 6 in O.S. No. 3094/2008 dated 01.06.2012 (Annexure-J) is hereby quashed.

(3) I.A. No. 6 filed by petitioner - third defendant (Annexure-G) is hereby allowed in part to the extent of permitting to incorporate paragraphs 8, 9 and 13 of proposed amendment therein.

(4) Amendment of written statement to be carried out by third defendant before trial Court on the next date of hearing without fail.

(5) Trial Court shall expeditiously dispose of the suit at any rate, within one year from the next date of hearing."