Golla Thirupathaiah and Others vs Karnam Ramasubbaiah and Others

B.S. Raikote, J.—Heard.

This revision petition is filed by the defendants challenging the judgment and order dated 29-1-1999 passed on I.A. No. 31/98 in O.S. No. 95/96 by the Principal Junior Civil Judge, Nandikotkur. By the impugned order, the amendment sought by the plaintiffs in LA. No. 31/98 was allowed.

The learned Counsel for the petitioners strenuously contended that as per the plaint filed, the plaintiffs admitted that the first defendant is the owner of the land situated to the south of C1 C1 C1 field channel in which the first defendant has dug a field channel, but by the proposed amendment the plaintiffs want to include the said field channel within the suit schedule property contending that the field channel is also part and parcel of Survey No. 440. He contended that this amendment if allowed would change the nature of the suit and the plaintiffs have not pleaded any cause of action regarding the field channel. In fact, according to the plaint which was filed along with the suit plan, it is clearly admitted that the first defendant is the owner of the area where he has dug field channel to the South of field channel C1 C1 C1 and by the proposed amendment such admission made by the plaintiffs would be taken away. Therefore, this amendment could not have been allowed by the Court below. He relied upon a judgment of the Supreme Court reported in Heeralal Vs. Kalyan Mal and Others, , stating that an admission cannot be allowed to be withdrawn by an amendment. On the other hand, the Counsel appearing for the respondents supported the order of the Court below and also relied upon a judgment of the Supreme Court reported in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, contending that even if an admission is made in the plaint, the same can be withdrawn or deleted by seeking amendment and accordingly he submitted that the revision petition is liable to be rejected.

From the order and also from the original pleadings filed in the suit I find that there are few facts which are admitted.

In the suit filed along with the suit plan the plaintiffs stated that they sought for injunction regarding C1 C1 C1 channel and also sought mandatory injunction regarding BEFC channel contending that channel C1 C1 C1 is being extended by the first defendant so as to reach his land which is to the West of the plaintiffs'' land. The plaint plan described that the plaintiffs are the owners of AEGH land and the channel C1 C1 C1 is within the boundary of ABEFCD. The plaint plan also described the action of the defendants extending C1 C1 C1 channel at the point of BEFC. It is also admitted that by the proposed amendment, now the plaintiffs want to contend that the filed channel in the area of 16 cents is within the land of Survey No. 440. Therefore, even the land AEID shown as field channel is part and parcel of Survey No. 440 and the plaintiffs should be permitted to include the field channel also as the suit schedule land. Thus, it is clear that the original stand of the plaintiffs was that the first defendant is the owner of the field channel AEID, but now the respondents-plaintiffs contend that the admission was made under a mistake and in fact the plaintiffs are the owners of the land AETD and the field channel also and the same should be included in the suit schedule land. From this stand it is clear that now by the proposed amendment the plaintiffs want to include the field channel AEID which was not found in the original suit schedule land. So far as the field channel is concerned, in the plaint in the proposed amendment the plaintiffs did not indicate any cause of action that prompted them to file the suit regarding the field channel. The cause of action shown in the plaint was regarding the attempt on the part of the first defendant extending C1 C1 C1 channel at the BEFC portion. From this, prima facie, it follows that the plaintiffs want to include a fresh cause of action and they also want to include the field channel AEID in the suit schedule land. Thus, even the nature of the suit schedule property stands changed by the proposed amendment. Apart from that, the plaintiffs by the proposed amendment are taking away the admission made by them that AEID channel as belonging to the defendant. The Honourable Supreme Court in Heeralal''s case (1 supra) observed that an amendment proposing to withdraw the admission cannot be permitted. There appears to be a divergent view of the Apex Court in Akshaya Restaurant Vs. P. Anjanappa and Another, , where a Division Bench of the Supreme Court took the view that even the admission can be explained and even inconsistent pleas could be takerwn the pleadings. But this view is held to be not correct in the light of the judgment of the three-Judge Bench of the Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., . Explaining these two judgments, the Honourable Supreme Court in Heeralal''s case (1 supra) held that the decision in Akshaya Restaurant Vs. P. Anjanappa and Another, could not be correct law in view of the judgment in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., . I think it appropriate to extract the relevant part of the judgment as under:

"The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice.

Unfortunately the aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned Judges that decided the case in Akshaya Restaurant (supra). In the latter case it was observed by die Bench of two learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant {1995 AIR SCW 2277) (supra) proceed on an assumption that it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However, the aforesaid decision of the three-member Bench of this Court in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff''s case and cause him irretrievable prejudice.

Consequently, it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff''s case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three-member Bench of this Court taking a diametrically opposite view."

From the above judgment of the Supreme Court it is clear that once an admission is made either by the plaintiff or the defendant, the same cannot be taken away by amending the plaint or written statement, as the case may be.

In the instant case, the plaintiffs want to withdraw their earlier admission made in the plaint that the field channel belongs to the first defendant by contending in the proposed amendment that the field channel under Survey No. 140 also belongs to plaintiffs and it should be made part of the suit schedule property. The proposed amendment cannot be allowed in view of the law declared by the Apex Court, since the proposed amendment would change the cause of action and subject matter of the suit and cause prejudice to the contention of the first defendant that he is the owner of the field channel situated in Sy. No. 439.

For the above reasons, I think it appropriate to pass the order as under:

The revision petition is allowed. The impugned order is set aside and I.A. No. 31/98 in O.S. No. 95/96 is hereby dismissed. No order as to costs.