Mentrajpally Das alias Nour Gangadhar vs Mentrajpally Bhulaxmi and another

K.Surender, J

This  Civil  Revision  Petition  is  filed  by  the  petitioner/1st defendant aggrieved by the orders dated 13.06.2024 in I.A.No.207 of 2024 in O.S.No.87 of 2015 passed by Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, at Nizamabad, wherein the petition filed under Order VI Rule 17 of CPC to permit the petitioner to amend the written statement, was dismissed.

The original suit was filed for partition and separate possession of land. It is the claim of the Plaintiff that after the death of their parents, the defendant inherited the property, which was subsequently mutated in his name. The plaintiff alleges that despite this mutation, the defendant's ownership claim is invalid, asserting that the property is part of a joint Hindu family estate.

I.A. No. 207 of 2024 was filed Order 6, Rule 17 of the CPC to amend the written statement that was filed by the defendant no. 1. It is the case of the petitioner that initially he claimed in his written statement that the property belonged to his father and was transferred to him through Record of Rights (ROR) proceedings, with mutation completed in 2006. The petitioner seeks to amend his WS to assert ownership and possession of the suit property through a purchase from a lawful owner, contradicting his previous claim of inheritance.

It was the specific contention of the respondent/plaintiff before the Court below that the petitioner is estopped under Section 115 of the Indian Evidence Act from changing his statement as he had previously admitted that the property belonged to his father and allowing the amendment would prejudice the respondent, who has completed evidence based on the original statement.

The trial Court observed that the petitioner’s proposed amendment would retract his earlier admission about inheriting the property from his father, which is not permissible. The amendment could fundamentally alter the defence. The proposed amendment lacks specific details, such as the vendor’s identity, date, and mode of purchase. The error in the written statement is considered a fundamental change, not a minor or clerical error. Lastly, the petitioner justified the delay in seeking the amendment by citing an ‘oversight.’ However, the court found this explanation implausible because the rest of the written statement does not support the new claim of purchase, and the amendment appears to be an attempt to fundamentally alter the defence rather than correcting a minor clerical error.

The Hon’ble Supreme Court in the case of Basavaraj v. Indira in Civil Appeal No.2886 of 2012, dated 29.02.2024 observed as follows:

“8. Proviso to Order VI Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party Page 10 of 15 could not have raised the matter before the commencement of trial. In the case in hand, this is not even the pleaded case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.

This Court in M. Revanna v. Anjanamma (Dead) by legal representatives and others11 opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order VI Rule 17 C.P.C. prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlierIt is not a matter of right. Paragraph No. 7 thereof is extracted below: “7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the 11 (2019) 4 SCC 332 Page 12 of 15 trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.”

Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible.

This Court in Revajeetu’s case (supra) enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.”

In the original written statement, the petitioner claimed that the property in question belonged to his father and was transferred to him through Record of Rights (ROR) proceedings, with the mutation completed in 2006. This claim established the petitioner’s ownership based on inheritance. However, the petitioner now seeks to amend his written statement to assert that he owns and possesses the suit property through a purchase from a lawful owner, contradicting his earlier claim of inheritance. This proposed amendment represents a complete departure from the original assertion of inheritance. According to the judgment of Hon’ble Supreme Court in Basavaraj’s case (supra), an ‘oversight’ is not a valid reason for amending pleadings later in the trial. Furthermore, while amendments to explain admissions are permissible, withdrawing or contradicting earlier admissions is not. The proposed amendment effectively displaces the original claim, which is contrary to the permissible scope of amendments. Considering that the proposed amendment entails a fundamental change from the original claim of inheritance to a new claim based on purchase, it must be assessed whether this constitutes a complete withdrawal of the earlier position.

Following the judgment of the Hon’ble Supreme Court in Basavaraj’s case (supra), since the proposed amendment is contrary to what was stated in the original claim, the amendment cannot be permitted.

Accordingly, Civil Revision Petition is dismissed. As a sequel thereto, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.