Mahesh Chandra Tiwari vs Ram Dutt Tiwari

Sharad Sharma, J.

The petitioner is an appellant in Civil Appeal No. 09 of 2018 ‘Mahesh Chandra Tiwari vs. Ram Dutt Tiwari’. The grievance of the petitioner

agitated in the present Writ Petition is against the order dated 26.05.2018 by virtue of which his application paper no. 15 x filed under Order 6 Rule 17

of Code of Civil Procedure seeking amendment in written statement has been rejected. By virtue of the aforesaid application the petitioner has sought

an amendment in certain lines of the written statement by changing the word “joint business†to “joint hindu family businessâ€. It is this

application which has been rejected by the Appellate Court. Apparently, what is reflected from the proceedings, which has reached upto the appellate

stage, is that the plaintiff/respondent had instituted an Original Suit No. 78/2015 in which the present petitioner is shown as to be one of the brothers of

the plaintiff. However, in paragraph 2 it has been contended that the defendant (petitioner herein) was the brother but he was a licencee occupying a

certain part of the property as defined in paragraph 1 of the plaint property. The Suit was instituted on 14.10.2015 and in response thereto the

petitioner had filed his written statement on 20.12.2016, where in paragraph 9 following pleadings were raised by the petitioner:

“9- ;g fd nkok i= esa of.kZr Hkou nkokdrkZ o tokcnkrk }kjk la;qDr dkjksckj ls vftZr /ku ls fufeZr Hkou gS ftlds okLrfod Lokeh nkokdrkZ o

tokcnkrk nksuksa gSa rFkk nkokdrkZ mDr lEifRr dk rugk ekfyd ugha gS] ;gka ;g Hkh mYys[kuh; gS fd nkokdrkZ mDr lEifRr dk rugk ekfyd ugha gS]

;gka ;g Hkh mYys[kuh; gS fd nkokdrkZ o tokcnkrk Lo0 ckyknRr frokjh ds 6 iq=ksa Jh x.ksâ€k nRr] xksiky nRr] jkenRr] egsâ€k pUnz] fouksn]

Hkqou pUnz esa ls rhljs o pkSFks uEcj ds iq= gSa vkSj lEifRr ds okLrfod Lokeh dh e`R;q ds ckn muds okfjl gksus ds ukrs muds dkjksckj okyh nqdku

jkeiqj jksM pkSjkgk fudV fgUnw /keZâ€kkyk gY}kuh esa la;qDr :Ik ls vU; e`r gks pqds HkkbZ Lo0 fouksn ds lkFk dkjksckj djrs jgs vkSj bl nqdku ls

vftZr vk; ls gh tokcnkrk o oknh }kjk ,d&,d vkoklh; Hkw[k.M Ø; fd;k x;k vkSj ,d O;olkf;d Hkw[k.M nkokdrkZ ds uke Ø; dj ml ij la;qDr dkjksckj okyh

nqdku ls Hkh /ku [kpZ dj fuekZ.k fd;k x;k rFkk nkok i= esa of.kZr Hkou esa vkilh lgefr ls vius&vius gd ds vuqlkj nksuksa yksx Øeâ€k% izFke ry o

Hkwry esa fuokl dj jgs gSa u fd izFke ry o f}rh; ry esa tSlk fd nkok i= esa] dgk x;k gSAâ€​

Apparently, according to the petitioner’s case himself he has contended that the property in question falls to be a joint business shop. However,

the Suit proceeded and was decreed against the petitioner and consequently a decree of eviction was rendered. On 13.03.2018 the amendment

application was filed seeking the following amendment:

“d- ;g fd izfrokni= ds iSjk la0 9 dh igyh ykbu esa “kCn Þla;qDr dkjksckjß ds LFkku ij “kCn Þla;qDr fgUnw ifjokj dk dkjksckjß djus dh

vuqefr iznku dh tk;sA â€​

This application for amendment was opposed by the respondent on the ground that the proposed amendment changes the nature of pleading and the

basis of claim of the defendant petitioner. He submitted that it would effect the proceedings as the decision of Trial Court that property was acquired

by plaintiff by income of joint business. It would amount to withdraw admission. Amendment would introduce new plea.

The same has been rejected by the impugned order passed by the learned Appellate Court on 26.05.2018. According to the application, which has

been submitted for amendment, the reason for amendment was that it was wrongly transcribed and the mistake has occurred because of

typographical mistake. The nature of amendment sought, it completely changes the complexion of the 3 proceedings as the term “joint businessâ€

admittedly pleaded in the written statement has been sought to be changed as joint “hindu family businessâ€, which altogether defines a different

status of the subject matter of the said property and will have a vital effect on the proceedings of the Suit itself.

The contention of the learned counsel for the petitioner is to the effect that in view of the language used under Order 6 Rule 17 of CPC and the

ratio as propounded in the judgment of the Hon’ble Apex Court ‘Baldev Singh & Others vs. Manohar Singh & Another’ reported in AIR

2006 SC 2832 the amendment can be carried at any stage. There is no doubt about the said proposition that the amendment could be carried at any

stage, which has a vital effect on the proceedings but the rider attached to the amendments are that it should not have an affect of changing of the

nature of the proceedings and the foundation on which trial has been faced by parties to the proceedings and withdrawing an admission which the

defendant himself has pleaded in the written statement pertaining to the nature of the property which was the subject matter of the Suit. Such type of

an amendment would amount to changing the complexion which cannot be permitted as it would amount to withdrawing admission.

Learned counsel for the petitioner has placed reliance on the judgment ‘Raj Kumar Bhatia vs. Subhash Chander Bhatia’ reported in 2018

All.C.J. 427. He has referred to Paragraph 10 of the said judgment, which is quoted hereunder:

In the original written statement, the appellant had set up the plea that the property in dispute was in the nature of joint family property and that

even after the alleged deed of relinquishment, parties were living together as members of a joint hindu family. The written statement inter alia contains

the following averments :

“10…The property is the joint family property. The sister of the respondent is married and well settled at her matrimonial home… The defendant,

plaintiff and the said S C Bhatia were jointly occupying the said property as being the undivided joint family property. That even after 4 execution of

the alleged relinquishment dee the abovesaid parties were living as joint family and the suit property being the undivided joint family… That all family

members were using ground floor, first floor and second floor jointly as undivided joint family property.†In paragraph 12 of the written statement, the

appellant has set up an oral family arrangement, thus :

“12…That acting upon the oral family arrangement, an amount of Rs. 6,00,000/- was taken out of the common fund of the Joint Hindu Undivided

Family. The said amount has been handed over to Dr R C Bhatia and Shri Shakti Bhatia both residents of Modi Nagar, U P on interest. The said two

persons are regularly paying interest to the plaintiff.â€​ In “the reply on meritsâ€​, the appellant has averred that :

“2… The defendant is in possession of the first floor, second floor and terrace of the said property as owner as per the oral family settlement of

the undivided Joint Hindu Property…

That all other assets movable as well as immovable including the factory in the name and style of Rattan Industries situated at 18 DLF Industrial Modi

Nagar, are still in joint possession and ownership and no division on metes and bounds has taken place. Though the “said property†has been

divided by mets and bound as per the oral family armament. The plaintiff has made the present averment at the behest of her younger son Shri S C

Bhatia with an ill intention and motive to deprive the defendant of his lawful occupation. That as per the said oral family arrangements, an amount of

Rs. 6 lacs from joint funds has been handed over on interest to Dr R C Bhatia and Smt Shakti Bhatia, son in law and daughter of the plaintiff. That R

C Bhatia and Smt Shakti Bhatia have been regularly paying interest to the plaintiff on the said amount.â€​

Looking to the nature of the pleadings as proposed therein is not an issue which is covered in the present controversy there the amendment in the

original written statement was dealing with the relinquishment made by virtue of the deed under consideration in those proceedings. In the said case

right from initiation of the proceedings it was pleaded that it was a joint family property. No benefit could be extended to the petitioner based on the

ratio as laid down by his Lordships in the aforesaid judgments.

However, in this Writ Petition this Court does not find merit and is accordingly dismissed. This will not preclude the 5 petitioner to take recourse to

Section 105 when the appellate judgment if at all is required to be challenged in the Second Appeal.

Writ Petition is dismissed, there would be no order as to cost.