MAHESH SINGH JAMWAL vs SHEIKH MOHD.ASLAM AND ANR

At the outset, learned counsel for the petitioner submits that he has inadvertently filed the revision petition against the order dated 18.5.2018Â

passed by the learned 3rd Additional Munsiff, Jammu ( hereinafter referred to as “ The Trial Courtâ€) whereby the application of the

respondents seeking amendment of the  written statement, has been allowed . He further submits that the order impugned is not

revisable under Section 115 of the Code of Civil Procedure, as such the revision petition filed by him, may be treated as petition under Section

104 of the J&K State Constitution .

After going through the contents of the revision petition, I found that sufficient foundation has been laid for invocation of supervisory jurisdiction of

this Court. Accordingly, the prayer of the petitioner is accepted and this petition is treated as petition under Section 104 of the J&K State Constitution.

This, however, is without prejudice to right of respondents to claim that the order impugned is not amenable to be corrected in exercise

of supervisory jurisdiction  vested in this Court under Section 104 of the J&K State Constitution.

The petitioner claiming to be the owner in possession of land measuring 3 kanals 3 Marlas comprised in Khasra No. 403 min( “2 kanals 8

marlas ) and Khasra No. 401 min ( 5 marlas ) situated at revenue village Chowadi, filed a suit for permanent prohibitory injunction before the TrialÂ

Court seeking to restrain the respondents from interfering in any manner over the aforesaid plot of land on the basis of  cause of action

accrued to the petitioner on 29.9.2016 when the respondents collected the building material on the spot and started raising construction.

The suit was resisted by the respondents by filing written statement. The respondents in paragraph No. 4 of the written statement pleaded that

respondent No. 2 had raised the plinth for construction of wall over the plot of land comprised in Khasra No. 401 min. It was also claimed that the

respondent No.2 and his brother were in occupation of land measuring 10 kanals 1 marla in the aforesaid khasra number. It appears thatÂ

after filing written statement, respondents realized their mistake when Commission appointed by the Trial Court submitted its report after

demarcation indicating therein that the respondents had raised construction of the plinth in Khasra No.403 min. Â

With a view to correct the mistake and set the record straight, the respondents filed an application under Order VI Rule 17 seekingÂ

permission of the Trial Court to amend the written statement so as to plead that the respondents were in possession of propertyÂ

comprised in Khasra No. 401 and 403 min and sought the permission of the Trial Court to recast paragraph Nos. 1 to 4 of preliminary objections

and paragraph No. 1 of the written statement.Â

The application filed by the respondents( defendants ) was resisted by the petitioner ( plaintiff ) inter alia on the ground that amendment

sought by the respondents amounts to withdrawal of admission which cannot be permitted. It was pleaded that amendment sought by the

respondents in written statement would not only change the complexion of defence but would introduce altogether different facts which

are contradictory to the reply already filed by way of written statement. The matter was considered by the Trial Court and vide its order

dated 18.5.2018, the application filed by the respondents was allowed and respondents were permitted to amend written statementÂ

by stating therein that they had raised construction of plinth over khasra No. 403 instead of Khasra No. 401 and accordingly the

proposed amended written statement which was submitted to the Trial Court was taken on record. It is this order of the Trial Court

which is assailed before this Court by invoking the supervisory jurisdiction. Â

Having heard learned counsel for the parties, I am satisfied that there is no legal infirmity in the order which may call for interference by this

Court in exercise of its supervisory jurisdiction vested in terms of Section 104 of the J&K State Constitution . Exercise of supervisory

jurisdiction to correct the discretionary orders of the courts subordinate to the High Court is very limited and circumscribed by the set parameters of

law enunciated in various pronouncements of the Apex Court.Â

The contention of the learned counsel for the petitioner that the order impugned has been passed by the Trial Court in flagrant violation of the

established principles of law and has thus, occasioned failure of justice, is without any substance. With a view to examine as to whether the

amendment of the written statement as permitted by the Trial Court, has the effect of allowing the respondents to withdraw the

admission made in the written statement, I have carefully examined the plaint and the written statement. As is apparent from the case set up by

the petitioner in his plaint, the petitioner is claiming to be owner in possession of land measuring 3 kanals 3 marlas comprised in khasra

Nos. 401 and 403 min situated at revenue village Chowadi . His grievance against the respondents is that they are interfering in the aforesaid

land without having right, title or interest. In paragraph No. 7 of the plaint, the petitioner while disclosing cause of action, has stated that the

respondents have collected building material for raising construction of the wall over the land belonging to the petitioner. In short, the petitioner has

alleged interference on his plot which is comprised in Khasra Nos. 401 and 403 min. In the written statement filed by the respondents, it is claimed

that respondent No. 2 has purchased the land comprised in Khasra Nos. 401 and 403 min and other khasra numbers at village Chowadi . In

paragraph No. 4 of the brief facts, the respondents have further pleaded that respondent No.2 and his brother are in occupation of the land

measuring 10 kanals and 1 marla comprised in Khasra No. 401 min, where they have laid plinth for construction of wall.

Going by the averments made in the plaint and in the written statement, it cannot, by any stretch of reasoning, be said that the respondents have

admitted any factual averment made in the plaint. The respondents have not admitted that they are interfering in any part of the land possessed by

the petitioner. Needless to say that the fact asserted by one party and not denied by the other party, would alone amount to admission. Reading of

paragraph No. 1 and 4 of the brief facts of the written statement would make it clear that the respondents have not admitted any of the fact asserted

by the petitioner in his plaint. That being so, the amendment sought by the respondents to the written statement to the extent indicated above, does not

in any manner, amount to withdrawal of any admission made in the written statement. As a matter of fact, the amendment sought is clarificatory/

explanatory in nature. The report of the Commissioner submitted pursuant to the direction of the Trial Court has introduced ambiguity which the

respondents have sought to clarify by way of amendment.

It is not in dispute that the respondents in the written statement have pleaded that they are owner in possession of the land falling inter alia in khasra

Nos. 401 and 403. The only difference is that in the written statement filed, the respondents, it is claimed that they were raising plinth for

construction of the wall in khasra No. 401 and by way of written statement, they have sought to plead that it is being done on khasra No. 403

min.  Whether the respondents are raising construction of the boundary wall in khasra No. 401 or in khasra No. 403, is a question  of fact

which would require determination in the trial. It is petitioner who has alleged interference by the respondents on his land comprised in khasra Nos.

401 and 403 and, therefore, it would be for him to establish his case during the trial to be conducted by the Trial Court.Â

It is now, beyond the pale of judicial uncertainty that amendment to the pleadings can be allowed to raise plea which is even contradictory or

inconsistent.  Under Order VI Rule 17 of the CPC, amendment to the pleadings may be permitted by the Court at any stage of the proceedings, if

it finds the same necessary for determining the real question in controversy and for effective adjudication of the lis.  First part of provision

provides that this power of the Court can be invoked by either party at any stage of the proceedings  and the second part provides

that only such amendment would be allowed which is necessary for effective adjudication of real controversy between the parties . It is

axiomatic that even if there are some admission made in the written statement, it will still be open to the defendant to explain the sameÂ

by filing application for amendment of the written statement though whole hog withdrawal of admission may not be permissible.Â

In case M/s  Modi Spinning and Weaving Mills Co. Ltd. And Another Vs M/s Ladha Ram Co. (1976) 4 SCC 320, the Supreme Court

while clarifying the position with regard to law of amendment of pleadings clearly enunciated that inconsistent or alternative pleas can be made

in the written statement.

In view of law laid down by the Supreme Court, it is now well established  that inconsistent plea can also be raised by the defendants in the

written statement although the same may not be permissible in the case of plaint.Â

In the context of controversy which has arisen in this case, it would be appropriate to take  note of the observation of the

Supreme court  made in the case of  Baldev Singh and Others Vs Manhor Singh and Another; 2006 (6) SCC 498. In Paragraph Nos. 7

to 9Â of the judgment, it is held thus :Â Â Â Â Â Â Â Â Â

“7. Before we take up this question for our decision, we must consider some of the principles that govern allowing an amendment of the

pleadings.Â

It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer

for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a

decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 P.C. 249) in which the Privy Council observed:Â

All rules of courts are nothing but provisions intended to   secure the proper administration of justice and it is, therefore, essential that they

should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally

exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of

amendment, the subjectmatter of the suit.""Â

Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil

Procedure deals with amendment of pleadings which provides that 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. From a bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code

of Civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings

and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore,

in view of the provisions made under Order 6 Rule 17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred

on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While

dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pleadings if it finds that

delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a

proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings either of the

parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied

that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the

Code of Civil Procedure is concerned, we shall deal with it later.â€​Â

In view of position of law adumbrated hereinabove, it cannot be said that the order impugned passed by the Trial Court suffers from any

grave illegality or has resulted in serious miscarriage of justice. The order impugned having been found to be in consonance with established

principles of law and being otherwise discretionary in nature, cannot be interfered with in exercise of supervisory jurisdiction vested in this

court under Section 104 of the J&K State Constitution.

For the reasons stated and the legal position explained above, I find no cause for interference in the order impugned.

Accordingly, this petition is dismissed alongwith IA No. 1/2018.