Emaculate Conception Church vs The Director General Export Promotion Council, Ministry of Commerce, Government of India, The Imperial Hospital and Research Centre Pvt. Ltd., State of Karnataka and Deputy Commissioner

A.S. Bopanna, J.—The petitioner herein is the plaintiff in O.S. No. 2964/94. The suit is tiled for declaration that the plaintiff is the owner of the suit, schedule property i.e., Sy. No. 154/11 measuring 7 acres 32 guntas in Doreswainy Palya, Begur Hobli, Bilekanahalli Dhakle, Bangalore South Taluk. Further prayer is also made to declare the grant made in favour of defendants No, 1 and 2 i.e., 2 acres 32 guntas and 5 acres respectively as null and void. The said grant is made by the Government. As such the defendants No. 3 and 4 were subsequently impleaded by amending the cause title to the plaint. The defendants, including defendants No. 3 and 4 filed their written statement. Subsequently, in the pending suit, the defendants No. 3 and 4 tiled an application under Order 6 Rule 17 of CPC seeking leave to amend their written statement. The application was registered as I,A. No. 8. The plaintiffs filed their objections to the same.

The trial Court after considering the rival contentions has allowed the said application by its order dated 24.1.2008 and the defendants have carried out the amendment. The plaintiffs however claiming to be aggrieved by the said order dated 24.1.2008 are before this Court in this petition. The order is impugned at Annexure-E to the petition

Heard Sri S.P. Shankar, learned senior counsel with Ms. Mamata Kulkarni, learned Counsel for the petitioner, Sri Padmanabha Mahale, learned senior counsel with Sri Mallinath S Maka for the 2nd respondent and Sri R.B. Venkataramana, learned Government Advocate for respondents No. 3 and 4 and perused the writ papers including the order impugned.

A perusal of the order dated 24.1.2008 would indicate that though the trial Court has not adverted to detailed reasoning, the principles relating to amendment has been kept in view. In that background, being of the opinion that the amendment does not change the nature of defence and that it would be necessary for the purpose of arriving at just decision, has allowed the same. The learned senior counsel for the petitioner would however contend that that trial Court has in fact missed out the important aspect that an amendment which would resile from an earlier admission made in the written statement which has enured to the benefit of the plaintiff cannot be permitted. In this regard, it is contended that the averments in the written statement which is sought to be deleted by way of amendment would admit the nature of revenue entries and by deleting the same, it would amount to retracting from such admission which would affect the case of the petitioner. It is contended that such amendment is not to be allowed in view of the law laid down by the Hon''ble Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., ; in the case of Heeralal Vs. Kalyan Mal and Others, ; in the case of Radhika Devi Vs. Bajrangi Singh and others, and in the case of Ajendrapradji N. Pande and Anr. v. Swami Keshav Prakeshdasji N. and Ors. 2007 AIR SCW 513.

The learned senior counsel for the second respondent, apart from supporting the order of the trial Court contended that the very nature of the claim made in the plaint and considering that the grant in favour of the second respondent had been challenged in an earlier Writ Petition would indicate that the plaintiff would have to prove their case and the statement made in the written statement would not place them in any better position so as to claim that the amendment has prejudiced them. The decision in the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, is relied on to contend that the Hon''ble Supreme Court has ruled that not only amendment could be made to explain the admissions but even inconsistent plea could be taken.

The learned Government Advocate contends that the written statement was based on para wise comments rendered by the then Tahsildar. But the said statements sought to be deleted by amendment which is termed as admission is not so since the same is contrary to the government records. Since the written statement was at variance from the records, the same has been corrected. An affidavit filed before this Court on 21.7.2008 by the present Tahsildar stating that the earlier statement is contrary to the records is also referred to by the learned Government Advocate.

In the light of the above, while noticing the law laid down by the Hon''ble Supreme Court, though the learned senior counsel for the petitioner contended that the decision in the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, cannot be relied on by this Court since the same is rendered by relying on an earlier decision of the Hon''ble Supreme Court in the case of Akshaya Restaurant Vs. P. Anjanappa and Another, which was held to be per incuriam in Heeralal Vs. Kalyan Mal and Others, since the said view was contrary to the view expressed in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., , I am not convinced on that aspect. The decisions relied on by the learned senior counsel for the petitioner in the case of Commissioner of Income Tax, Bihar Vs. Trilok Nath Mehrotra and Others, and in the case of General Manager, Telecom Vs. A. Srinivasa Rao and Others, would not be of assistance in the present context. No doubt in the said decisions the Hon''ble Supreme Court while considering its own earlier decisions has stated with regard to the binding force of the decision of a larger bench if there is conflicting decisions. But, in the instant case, in fact all the above stated judgments including that of the larger bench in M/s. MODI SPINNING AND WEAVING MILLS have also been noticed by the Hon''ble Supreme Court while rendering the decision in USHA BALASAHEB SWAMI''S case and in that context on applying the principles to the case on hand has rendered the guidelines contained therein. Therefore, when a Bench of the Hon''ble Supreme Court, has noticed the decision of the larger bench also while rendering its decision and thereafter has come to a particular conclusion, it would not be open for this Court to dissect such decision minutely to state that the said bench had not followed the view expressed by a larger bench.

Further, in my view, even the decisions rendered by the Hon''ble Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., and Heeralal Vs. Kalyan Mal and Others, are rendered keeping in view the contents in the original pleadings and the nature of amendment sought to be incorporated and also keeping in view the inter-se dispute between the parties to those cases. In the first of the above decisions, the earlier statements made with regard to the nature of the agreement and the nature of relationship was sought to be amended by retracting from the earlier stand taken. The second case related to the gift deed on which the defendant had placed reliance and beyond the period of limitation such right was sought to be negatived by amending the pleading. In the third of the above decision, the issue involved was partition and in that context a clear admission in the written statement with regard to the item of property being joint family property was sought to be resiled by way of amendment.

Though in all the above referred decisions, the underlying principle is that an admission made in the pleadings cannot be allowed to be withdrawn but it also lays down, that the matter to be noticed in each case is, whether such withdrawal would amount to displacing the case of the plaintiff and cause him irretrievable prejudice. Therefore, in every case apart from the other principles relating to amendment, the nature of admission made and the effect of riesling would have to be examined since there can be no blanket bar nor strait jacket formula against amendment in such circumstance but would depend on the nature of each case and the tenor of the alleged admission in the background of the entire case.

In this background, if the facts involved in the present case is noticed, the plaintiff claims to have purchased lands in several survey numbers including Sy. No. 141 under a registered sale deed dated 13.8.1978 and the said survey number is thereafter renumbered as Sy. No. 154 and presently as Sy. No. 154/11. According to the plaintiff, the said Sy. No. 154 consisted of 29 acres 30 guntas which were ''Kushki'' lands, but an extent of 7 acres 32 guntas were wrongly shown as ''phot kharab'' and also claims that revenue records stand in the name of Rev, Father J.M. Albert in respect of Sy. No. 154/11. It is in that context the plaintiff claims that, though the said land belongs to plaintiff it is wrongly granted to defendants No. 1 and 2 despite the same not being Government land. The written statement of defendants No. 3 and 4 has not admitted the entire claim of the plaintiff inasmuch as the case of the plaintiff to claim declaration of ownership is denied but certain revenue entries stated by the plaintiff is admitted. This statement with regard to revenue entries is sought to be deleted and the explanation to do so is that the same are contrary to the documents namely the revenue records. In this regard , even before this Court, on direction, the Tahsildar has filed an affidavit dated 21.7.2008 stating that the earlier averments in the written statement is contrary to the revenue entries. Though it is too premature to state anything regarding the actual state of affairs relating to the correctness or otherwise of the revenue entries, the same are public documents and will have to stand to scrutiny of the trial Court in deciding the light, of the parties ultimately, which would have to be done irrespective of the averments of the parties. However, insofar as the amendment is concerned, when it is stated on oath that the averments which are sought to be deleted are contrary to the entries in the public document, the said averments made at the first instance cannot in the first place qualify as admission. Even if for a moment they are considered as admissions, the withdrawal, in the facts evolving in the present case would not displace the case of the plaintiff and would not cause irretrievable prejudice since the plaintiff in any event has pleaded the manner of light to the property in question and stated with regard to revenue entries and in the absence of admissions all that is required to be done is to produce extracts of revenue records and summon the registers if need be. This right would always be available in law to the plaintiff. The plaintiff having to resort to such legal procedure cannot be treated as prejudice since even if the amended portion was available in the written statement still it would have been possible for the defendants themselves to produce the records or for that matter the defendants No. 1 and 2 would have been entitled to summon the register to disprove the so called admissions. In that view of the matter, in the present facts it cannot be said that the defendants 3 and 4 have taken inconsistent stand since as already noticed the earlier stand is said to be contrary to the records. In a fact situation of this nature, in tact the statements made in the amendment application to delete those portions cannot be said that it is conflicting with the earlier version but the version which was conflicting with the entries in the public document was sought to be deleted so as to bring the earlier statements in conformity with the documents. As such the decision in the case of Ajendraprasadji N. Pande and Anr. v. Swami Keshavaprakeshdasji N and Ors. AIR 2007 SCW 513 which is not rendered in a situation which is analogous to the present case and would not aid the petitioner. However, before parting, it is clarified that any of the observations made dining the course of this order shall not be construed as a finding with regard to the correctness, validity or otherwise of the entries in the revenue records.

Considering all these aspects of the matter, I am of the view that the discretion exercised by the trial Court in allowing the amendment does not suffer from material irregularity or error so as to call for interference.

Accordingly, the writ petition being devoid of merit is disposed of with no order as to costs.