Mangnu Mishra and Another vs Gauri Mishra and Others

Madan Mohan Prasad, J.—This is an application against an order refusing leave to amend the written statement filed by the petitioners in a suit for partition.

The claim of the plaintiffs was for a 3/5th share in the properties in suit on the following allegations. That there was one Kashi Mishra who had four sons--Goyind Mishra, Bhailal Mishra, Rajendra Mishra and Mohan Lal Mishra. Govind''s grandson is one Kunj Behari, defendant No. 1. His wife filed a suit as plaintiff No. 1 and her two sons are plaintiffs 2 and 3. Defendant No. 2 is another son of Kunj Behari. Defendant No. 3 is the widow of a son of Govind. The petitioners are the defendants of Rajaram, the third son of Kashi Mishra. The fourth son Mohan Lai had a son Janardan Mishra whose widow was Kunti Mishrain. The plaintiffs allege that after the death of Kunti Mishrain, the properties of Janardan Mishra, who died issueless, devolved on defendant No. 1 who was the sole surviving heir. It is said that in the branch of Rajaram Mishra the father and uncles of the petitioners had predeceased Kunti Mishrain and, therefore, they were merely impleaded as defendants third party In order to aviod future objection. In other words, it Is said that they did not inherit the property of Janardan Mishra. This was stated in paragraph 3 of the plaint. It was further stated that defendant No. 2, the son, was, not pulling on well with his father, defendant No. 1 and that defendant No. 1 has been neglecting the affairs of the family and defendant No. 2 was also living in bad company and had bad habits and the joint family property was being wasted. Further that defendant No. 2 had executed bogus and fictitious kebalas in favour of defendants second party (other than the petitioners). Hence the suit to safeguard the interest of the plaintiffs.

It appears by a written statement that these petitioners said (in paragraph 4)" that these defendants and the defendant second party are unnecessary party to the suit inasmuch as no land is joint between the plaintiffs and defendant first party on the one side and these defendants on the other and the plaintiffs have wrongly included in the partition claimed properties such lands which are already partitioned from before, "In paragraph 9 of the written statement the petitioners further said that the plaintiffs'' statement in paragraph 3 of the plaint that her (plaintiff No. 1 ''s) properties had devolved upon defendant No. 1 alone, was false. They said "that Kunti Mishrain died in the month of January, 1955 and in April, 1955 the properties left by Mossomat Kunti Mishrain were divided between defendant No. 1 on one side and these defendants on the other side half and half and by metes and bounds at the intervention of the Panches and according to the said partition the defendant No. 1 came in possession of the lands which were allotted in his share and has separately been dealing with them." They also alleged "that a memorandum of the aforesaid partition was written and executed by defendant No. 1 and this defendant No. 6 on 2nd Jeth, 1363 fasli which is equivalent to 26th May, 1956 and two Original documents were prepared both bearing thumb impression of defendant No. 1 and this defendant No. 6 and signature of the five Panches who had taken part in Partition of April, 1955.The aforesaid written statement was filed on the 18th of March, 1968.

A petition was, however, filed on the 12th of January, 1977 for an amendment of the written statement. It was stated therein that Nageshwar Mishra, the father of these defendant-petitioners, had died after the death of Kunti Mishrain but due to the mistake of the typist it was not typed in the original written statement. It was, therefore, prayed that paragraph 9 of the written statement be so amended as to read that Mossomat Kunti Mishrain died in the month of January, 1955 "and after sometime father of these defendants Shri Nageshwar Mishra died. After the death of Kunti Misharin, properties left by Kunti Mishrain devolved upon defendant No. 1 and father of these defendants and both the persons came in possession of the same jointly. And after the death of the father of these defendants, these defendants came in possession of the same with defendant No. 1 jointly."

The learned Subordinate Judge rejected the prayer on the ground that in the original written statement there was no denial of the allegation made in the plaint that Nageshwar Mishra had predeceased Mossomat Kunti and now that was being denied. Further, that in the original written statement it was said that the property had been divided between defendant No. 1 and these petitioners and it was not said that Nageshwar Mishra was a party to the division of the properties of Kunti Mishrain. In other words, there was no denial of the said allegation that defendant No. 1 was the sole surviving heir of Kunti. The new story thus contradicts the old pleas. Next, the learned Subordinate Judge said that the amendment has come at a late stage after nearly ten years when the suit has become ripe for hearing. In any case, the effect of the amendment is to taka away the effect of admissions thus made with regard to the case of the plaintiffs that defendant No. 1 was the sole surviving coparcener of the aforesaid Janardan Mishra and thus inherited the properties after Kunti Mishrain.

From what I have quoted from the written statement of these defendant-petitioners, it is obvious that the petitioners did not state at all that Nageshwar Mishra was alive at the death of Kunti Mishrain. It is also obvious that it was not their case that Nageshwar Mishra being alive had inherited the properties and there was any partition between him and defendant No. 1. On the other hand, the recital was that the aforesaid partition was between these petitioners and defendant No. 1, thus excluding the present contention that he was so alive and got a share at the partition. The second point which emerges is that these petitioners had said that they were unnecessary parties inasmuch as there was no land joint between the plaintiffs on one hand and these petitioners on the other. Contrary to this, in the present petition for amendment it is stated, firstly that Nageshwar Misra was alive and pot a share at the partition which was subsequently inherited by these petitioners and secondly that the father of these petitionsrs and defendant No. 1 came in possession jointly. This last statement is also contrary to their earlier statement that they had come in separate possession of the properties of Kunti Mishrain divided between these petitioners and defendant No. 1. There can be thus no gainsaying the fact that the present application makes out a case which is clearly inconsistent with the case made out earlier. Further it follows that the effect of the present amendment is contrary to what was conceded earlier.

It is urged on behalf of the opposite party that if Nageshwar Mishra was not alive at the relevant date, the plaintiffs'' case being that he had predeceased, he could not have inherited the property and consequently these petitioners could not have done so. Therefore, having realised the effect of the non-denial and the case made at the earlier occasion, the defendants have come out to change their case entirely. Further, their case of joint possession, it is said, is also absolutely contrary to their earlier stand of separate possession. There is no answer given by the petitioner''s counsel to this contention. In any case, it is not proper at this stage for me to express a concluded opinion on the point since it may affect the future of the suit itself. But there is no gainsaying the fact that the present amendment prayed for makes out a case clearly inconsistent with and contrary to the earlier case made out.

I would now like to discuss reasons for the amendment. The only such reason given is that the typist had omitted to mention these facts. Reading the written statement, its tenor and the context in which the recitals have been made, it is clear that it could not be the omission of the typist. On the other hand, it is obviously an after-thought on the part of these petitioners, having discovered the effect of their statements which are bound to be adverse to them. Thus, no valid reason has been given for allowing the amendment at this late stage.

The question, however, remains whether in such circumstances such a petition for amendment of the written statement ought to be allowed. In this connection counsel for the petitioners has relied on the decision in the case if Indian Cable Co. Ltd. Vs. The Union of India (UOI), . That was a case where it was held that the amendment did not alter the fundamental character of the suit and the foundation of the plaintiff''s claim remained still intact. That case related to amendment of plaint. The decision is, therefore, of no avail to the petitioners in the instant case.

It is well established that amendment of pleadings is not allowed where it has the effect of introducing new case. It is also well settled that ordinarily the principle which governs amendment of plaint also governs the amendment of the written statement see Amolakchand Mohanlal v. Firm of Sadhuram Tularam and Ors. AIR 1954 Nag 200 It is also well settled that where an amendment of a written statement sets up a new case which is inconsistent with the previous case and if it is unjust to the opposite side, it will not be allowed. See Firm Chittar Mal Ram Dayal v. Union of India 1970 S.C. 341. There are however, cases where it has been held that the test ought not be applied as vigorously as in the case of a plaint (See Nrisingh Prosad Paul Vs. Steel Products Ltd., . It has also been held that where a proposed amendment of a written statement has the effect of displacing the plaintiff''s suit, a court will refuse the application to amend see Karanpura Development Co. Ltd. v. The State of Behar and Ors. (1964) 68 C.W.N. 965. The principle was laid down in a decision in the case of Stewards, North Metropolitan Tramway Co. (1886) 16 Q.B.D. 556. In this case a person had sued a tramway company for damages caused by their negligence in keeping the tramway in bad repair. The company simply denied negligence and did not plead that the liability to keep it in proper repairs was that of the local authority. At a subsequent stage of the case the company applied for an amendment of the written statement to raise that plea, At that time the remedy of the aforesaid person against the local authority had become time-barred. It was held that the proposed amendment displaced the plaintiff''s suit and was therefore, unjust and accordingly it was disallowed. I should like to take note of a decision of a learned single judge of the Orissa High Court in the case of Aintha Swain Vs. Nilakantha Biswal, . That was the case of an amendment introduced in appeal. In that case there was a mistake in the written statement, the allegation being that in the written statement the year ''1963'' was a mistake for ''1962'' and that it had escaped the notice of the defendant by inadvertence and should be allowed to be corrected. This was allowed by the learned Judge on the ground that if the amendment had been applied for in the trial court, it would have been allowed. The decision governing cases of mistake by inadvertence has no relevance to the point at issue in the present case. A Division Bench of the Madras High Court in the case of L.A. Subramania Iyer Vs. R.H. Hitchcock, held that amendment of pleading should be allowed unless the party applying for leave has acted in bad faith or the amendment will cause some injury to the opposite party for which he cannot be fully compensated by costs or otherwise. The learned Judges further held that it is the duty of the court to assist parties in bringing out clearly the real issues involved between them, but they hastened to observe that they do not include new questions which the defendant neither wished nor intended then to dispute, but which, at a later stage, in the proceedings either because he had changed his mind or because something had happened after he filed his written statement, he thinks it profitable to dispute, and further that a defendant who has deliberately and under no mistake or misapprehension admitted a material fact in his written statement, cannot be allowed at a later stage in the proceedings to change his front and make a new case for himself by denying that fact. In the case of Baijnath Bhalotia Vs. State Bank of India and Others, his Court held that if a new case is sought to be made out, or facts or claims based upon a different cause of action are sought to be introduced by way of amendment, that has to be prevented because it will cause unnecessary prejudice to the other side. In that case a plea of set off was being raised by an amendment. This was held to be incorporation of new facts and a new claim and thus was held to be not permissible. It is not necessary to multiply authorities on the point.

In view of the conclusions at which I have arrived earlier, it is obvious that the present amendment, if allowed, would take away certain rights accrued to the other party by virtue of the position taken up in the earlier written statement and would thus cause prejudice to the plaintiffs, that it is contradictory to the earlier defence and takes up a new defence which is an after-thought and that it also introduces a new claim by statement of a certain fact. The court below has, therefore, acted rightly in disallowing the amendment prayed for.

In the result, this application is dismissed. In the circumstances of this case, however, there would be no order as to costs.