Kalyan and Others vs Hira Lal and Others

Shiv Kumar Sharma, J.—Core question which arises for determination in this revision is as to whether an admission made in the pleadings, by a party, can be withdrawn or explained away by amendment?

This question has emerged in the circumstances set out herein below:

(i) A suit for partition of immovable property was instituted by Plaintiff non-Petitioner No. 1 (for short Plaintiff) against the Defendant Petitioners (for short Defendants) and non-Petitioners (for short Defendants) and non-Petitioners No. 2 to 15 in the trial Court stating herein that the Defendants were real brothers and non-Petitioner Smt. Ghisibai, Smt. Mohinibai and Smt. Sohinibai were the widows and daughters of their predeceased Birdhilal. The Defendants and the ladies mentioned herein above were the members of the Joint Hindu Family which owned immovable property consisting of houses, plots and agricultural lands. Defendant Kalyan Mal being Karta of Joint Hindu Family was managing the properties in that capacity. He had been keeping tenants and managing for the cultivation of the agricultural lands and receiving its income. Plaintiff further stated in the plaint that being employee in the Medical Department, he had to remain out of the Keshorai-Patna. On January 15,1993 Plaintiff asked Defendant Kalyan Mal to appraise him about the income and expenditure of the immovable properties but Defendant Kalyan Mal refused to give any account to him. The Plaintiff sought relief of partition of the immovable property and possession of his share in the property. It was further, prayed that his name be entered in revenue records and Defendants be asked to explain the account of the income accrued in revenue records and Defendants be asked to explain the account of the income accrued from the land for period of last three years and his share of income be ordered to be paid to him. Prayer for appointing the receiver on the said property was also made.

(ii) The Defendants submitted the written statement and as many as six issues were framed on April, 21, 1994. Thereafter, the case was posted for recording the evidence of the Plaintiff.

(iii) On July 6, 1996 Defendants Kalyan Mal moved an application under Order VI, Rule 17 CPC for amendment of written statement stating therein that he could not supply correct information to his Counsel being an infirm old man. It was stated in the amendment application that the properties enumerated in items No. 1, 2, 3, 4, 6, 8, 9 and 10 of Schedule I appended with the plaint were the properties of the Defendants and remaining properties were joint. Lands comprised in Khasra Nos. 968 and 969 enumerated in items No. 1 of Schedule B-a annexed with plaint wherein possession of the trespassers prior to filing of the suit for partition by the Plaintiff and the lands had been sold to those trespassers. The properties enumerated at items No. 3 and 4 of schedule B-a, were not entered in the khatedari of Plaintiff and as such he was not entitled to claim any partition. As correct information could not be supplied at the time of filing of written statement, the properties enumerated at items No. 4, 9 and 10 of schedule A-a, annexed with the plaint were stated as personal property of the Defendants which were not correct. As a matter of facts, properties enumerated in items No. 1, 2, 3,4, 6, 8, 9 and 10 of schedule A-a, annexed with the plaint, were the person properties of the Defendants. On the basis of a said averment it was prayed that it has become necessary to re-write the para No. 2 of the written statement as stated in the amendment application and a prayer was made for granting permission to amend the written statement which was necessary to be granted in order to adjudicate all controversies between the parties.

2-A. The Plaintiff filed reply denying the averments made in the application. It was stated in the reply that the Defendants wanted to prolong the litigation. The Defendants cannot be permitted to withdraw, the admissions already made by them in the written statement.

(i) The learned trial Court vide order dated August 5, 1996 dismissed the application. Against the said order revision petition bearing No. 1209/96 was preferred by the Defendants. This Court vide order dated September 4, 1996 issued notices to the non-Petitioners and stayed the proceedings of civil suit pending before the learned trial Court.

(ii) The case was posted in the trial Court on September 4, 1996 itself and obviously the trial Court did not have the knowledge of the order passed by this Court. Therefore, application for appointing the receiver moved by the Plaintiff was allowed.

(iii) The Defendants assailed the said order by preferring S.B. Civil Misc. Appeal No. 941/96. As S.B. Civil Misc. Revision No. 1209/96 and Misc. Appeal both relate to the suit for partition between the parties, therefore, both are proposed to be disposed of by a common judgment.

I have given my anxious and thoughtful consideration to the arguments canvassed before me and carefully perused the impugned orders.

Mr. Sanjay Mahrishi learned Counsel has placed reliance on Ganesh Trading Co. Vs. Moji Ram, , Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, , Akshaya Restaurant Vs. P. Anjanappa and Another, , and Basavan Jaggu Dhobi v. Sukhnandan Ramdas Choudhary and assailed the order under revision. Challenging the order of appointment of receiver Mr. Mahrishi contended that the order was without jurisdiction as this Court stayed the proceedings of the suit.

On the other hand, Mr. Kamlakar Sharma learned Counsel for the Plaintiff place reliance on Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., and State of Raj. v. I. Das and Ors. 1996 (3) WLC (Raj) 349, and contended that amendment introducing entirely different new case cannot be allowed and the amendment application was rightly dismissed by the trial: Court. Mr. Kamlakar Sharma also supported the order of appointment of receiver.

Before adverting to the rival contentions, it is necessary to examine the provisions contained in order VI, of the Code of Civil Procedure. Rule 2 of the Order VI says that "Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into the paragraphs numbered consecutively, dates, sums and numbers shall be expressed in figures." Rule 4 of Order VI, indicates cases in which particulars of its pleading must be set out by party. And Rule 6 of Order VI requires only such conditions precedent to be distinctly specified in a pleading as a party wants to put in a issue. Rule 5 of Order VI, provides for such "further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading" "as the Court may order" and "upon such term as to costs and otherwise, as may be just" Rule 7 of Order VI contains a prohibition against departure of proof from the pleadings except by way of amendment of pleadings. Alter some provisions relating to special cases and circumstances, and for singing, verification and striking out of pleadings, comes Rule 17 of Order VI, which reads as follows:

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

It is clear from foregoing on summary of the main rules of pleadings that provisions for the amendment of pleadings subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situation resulting from amendment, are intended for promoting the ends of justice and not for defeating them.

Panchadev Narain Shreevastav ''s case (supra) was the case where the Hon''ble Apex Court indicted that admission made by a party may be withdrawn or may be explained away by way of amendment in pleadings.

Akshaya Restaurant v. P. Anjanappa, (supra) was the case in which the Apex Court propounded as under:

It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings F. It is seen that in para 6 of the written statement a definite stand was taken but subsequently in the application for amendment it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising of its power u/s 115, CPC in permitting amendment of the written statement.

Basavan Jaggu Dhobi (supra) was the case in which the Apex Court observed as under:

Whatever that the Courts below have gone wrong in holding that it is not open to the Defendant to amend his written statement under Order VI, Rule 17, CPC by taking a contrary stand then what was stated originally in the written statement. This is opposed to the settled-law. It is open to a Defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.

(Emphasis supplied)

This Court (Hon''ble Mr. R.R. Yadav, J.) in State of Raj v. Ishwar Dass and Ors. (supra followed the ratio of the decision rendered in the case of M/s. Modi Spg. and Wvg. Mills Co., (supra) which is a decision rendered by the Hon''ble three judges of the Supreme Court and ratio of case of Panchadev Narain Shrivastav (supra) was not followed being of decision rendered by Hon''ble two judges of Supreme Court.

This Court in State of Raj. v. Ishwar Singh case (supra) observed thus:

In view of the aforesaid facts circumstances, I have no hesitation to follow the ratio decidendi of the decision rendered in the case of M/s. Modi Spinning and Weaving Mills Company Ltd. (supra), which is a decision rendered by Hon''ble three judges of the Supreme Court while the decision relief upon by the learned Counsel for the revisionist Mr. Tatia in case of Panchdeo Narain Srivastava (supra) is a decision rendered by Hon''ble two judges of the Supreme Court.

Taking into account the ratio decidendi of the case of M/s. Modi Spinning and Weaving Mills Company Ltd. (supra), I hold that the Defendant revisionist has no justification to introduce by way of amendment entirely different new case seeking a relief under Order VI, Rule 17, CPC to displace the Plaintiff-opposite party completely from admissions made by the Defendant revisionist in his written statement causing prejudice to the Plaintiff opposite party in the present case.

In M/s. Ganesh Trading Co. v. Moji Ram, (supra) the Apex Court indicated as under:

Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.

In Modi Spinning''s case (supra) two paragraphs of the written statement contained additional pleas. Para 25 stated that the agreement dated April 7, 1967 was applicable to the transactions in which the Plaintiff worked as stockiest cum-distributor of the Defendants. The Defendants further alleged that the agreement was not applicable to transaction in which the Plaintiff acted as a principal. In para 26 of the Defendants alternatively alleged that even if the said agreement was applicable to the dealings in suit, Plaintiffs position was merely that of an agent of the Defendants and as such Plaintiff was not entitled to claim any damages from the Defendants for non-supply of its own goods for sale through the Plaintiffs.

The Defendants, approximately 3 years after the filing of the written statement, made an application for amendment of the written statement. The proposed amendments were for detention of paras 25 and 26. The proposed amendment in para 25 was that by virtue of the agreement the Plaintiff was appointed a mercantile agent and the Plaintiff acted in that capacity in placing orders on the Defendants. The Defendants further denied the allegation of the Plaintiff that the Plaintiff placed orders with the Defendants in the Plaintiff''s capacity as a purchaser. The Defendants also alleged that the Plaintiff throughout acted as an agent of the Defendants. In para 26 of the proposed amendment it was alleged that being a mercantile agent and an agent of the Defendants in accordance with the terms of the agreement the Plaintiff has no locus standi to file the suit.

The Apex Court in para 10 of the Modi Spinning''s case (supra) observed thus:

It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the Plaintiff completely from the admission made by the Defendants in the written statement. If such amendments are allowed the Plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the Defendants.

(Emphasis supplied)

Kishan Lal v. Smt. Chatti Bai AIR 1959 Hon''ble three judges of the Apex Court propounded that admissions are not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or are untrue.

Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, was the case there the Bench consisted of Hon''ble three judges of the Apex Court indicated that an admission is the best evidence that an opposite party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.

In Halsbury Laws of England (4th Edition, 1976, Vol. 17 page 50) it was stated that the party against whom evidence with regard to admission is tendered, may show that it was made under an erroneous view of the law, or its ignorance of the facts, or when his mind was in an abnormal condition, or he may be otherwise able to explain it away.

(Emphasis supplied)

In the instant case, as already state, the amendment application was made with the averment that the Petitioner Kalyan Mal, being an old man and heart patient, could not act properly and at the time of drafting the written statement he could not supply correct information to his Counsel and it was for this reason that only properties enumerated at items Nos. 4, 9 and 10 of schedule A-a, annexed with the plaint were stated as personal properties of the Defendants, which was not correct. As a matter of fact, properties enumerated in items No. 1, 2, 3, 4, 6, 8, 9 and 10 of Schedule A-1a, annexed with the plaint were the personal properties of the Defendants. The lands comprised in Khasra Nos. 968 and 969 enumerated at item No. 1 of schedule B-a annexed with the plaint, were in the possession of the trespassers prior to the filing of the suit and the lands had been sold to such trespassers and Plaintiff was not entered as Khatedar of the properties enumerated at items Nos. 3 and 4 of schedule B-a, annexed with the plaint and he was not entitled to file suit for partition.

I am of the view that by allowing the said amendment in the written statement it cannot be said that it amounts to seek to displace the Plaintiff completely from the admissions made by the Defendants in the written statements. The Plaintiffs, in my opinion shall not be irretrievably prejudiced by being denied the opportunity of extracting the admission from the Defendants. As is held in Kishori Lal v. Mrs. Chalti Bai (supra) by the Apex Court the maker of the admissions is at liberty to prove that they are mistaken or are untrue. The admission, as is held in Narayan Bhagwant Rao''s case (supra) by the Apex Court, no doubt are decisive of the matter but they can be successfully withdrawn or proved erroneous. The Defendants, in the instant case, explained the circumstances under which incorrect description of the property''s was made. The amendment sought is related to the corrections of the description of the properties.

In AIR 1921 50 (Privy Council) Bench constituted of Hon''ble four judges observed thus (at page 51):

If this be so, all that happened was that the Plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit. But if one if be accepted that they were attempting to establish those, rights, there is no sufficient reason shown for disturbing the judgment of the Judicial Commissioner, who thinks they should be at liberty to express their intention in a plainer and ambiguous manner. It may be noted that in the claim the relief sought is so awkwardly set out that it would be quite open to the interpretation that they had in fact claimed pre-emption and not a declaration of right.

Interpreting the observations made in Charan Dass v. Amir Khan (supra) the Apex Court in A.K. Gupta and Sons Vs. Damodar Valley Corporation, indicated thus:

These observation, again, made it clear that amendment was allowed with respect to a claim which at the time when it was made would have been time barred because that claim could be spelt out of the original plaint which was held to be defectively framed. A defect in the frame of the plaint was not considered sufficient to disallow amendment and to dismiss the suit. The amendment of the plaint was necessitated due to clumsy drafting.

(Emphasis supplied)

In A.K. Gupta''s case (supra) it was held by the Apex Court (in para 32) thus:

The only principle which can be deduced from this case is that amendment of the plaint can be allowed to make the plaint complete in particulars which would help in determining the real dispute between the parties as raised by the plaint itself as originally presented.

From the imperative character of the last sentence of Rule 17 of Order VI, CPC it seems to me clear that at any stage of the proceedings all amendments ought to be allowed which satisfy the two conditions:

(i) of not working injustice to the other side, and

(ii) of being necessary for the purpose of determining the real questions in controversy between the parties.

As is held in Cooper v. Smith 1884 (26) Ch. D. 700 (710-711) that the object of Courts and rules of the procedure is to decide the rights of the parties and not to punish them for their mistakes.

It is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: (See Charan Das v. Amir Khan) (supra).

In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., Bench constituted of Hon''ble three judges of the Apex Court in para 16 observed thus:

It is no doubt true that Court would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order, if that is required in the interest of justice.

The principles deducible from the observation made by the majority of the Hon''ble Judges of the Privy Council and the Supreme Court, are that even the inconsistent pleas can be taken and even the admission can be explained. It is open to a Defendant to take even contradicting stands without affecting the cause of action. Such amendments should not seek to displace the Plaintiff completely from the admissions made by the Defendants in the written statement. The Plaintiff should not be irretrievably prejudiced by being denied the opportunity of extracting the admission from the Defendants. Procedural law is intended to facilitate and not to obstruct the cause of substantive justice. The admissions are not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or are untrue. The admissions may be withdrawn or proved erroneous. A defect in the frame of the pleading may be amended. The object of the Courts and rules of procedure is to decide the rights of the parties and not punish them for their mistakes.

The Plaintiff, in the instant case, as already observed by me, shall not be prejudiced if mistakes in description of properties, are rectified. The Plaintiff can file reply to the amended written statement and he will not be displaced by allowing the said amendment. The amendment in my opinion, is no more than a different approach to same facts set out in the written statement.

Therefore, I am of the view, that the learned trial Court has committed jurisdictional error in disallowing the amendment application and if the impugned order is allowed to stand, it would occasion failure of justice. The order impugning in the civil misc. appeal is also unsustainable as it was passed on the date on which this Court, stayed the proceedings of the suit.

Consequently, revision and civil misc. appeal are allowed and impugned orders are set aside. While allowing the application under Order VI, Rule 17, CPC of the Defendants. I direct that the Defendants shall pay Rs. 2,000/ - as costs to the Plaintiff. The Defendants shall file amended written statement in the trial Court within a period of one month from today. Thereafter the Plaintiff shall be permitted to file rejoinder. However, I may like to observe that if any interim application, under the change circumstances, is filed by the parties, the same shall be considered on merit.