Patasi Devi and Others vs Jagdish Prasad Khandelwal and Others

Dr. Akshaya Kumar Rath, J.—In this application under Article 227 of the Constitution of India, challenge is made to the order dated 2.2.2002 passed by the learned Civil Judge (Junior Division), Balasore in T.S. No. 996 of 1995-I. By the said order, the learned trial court rejected the application for amendment of the written statement-cum-counter claim.

Opposite parties as plaintiffs instituted Title Suit No. 996 of 1995-I in the court of learned Civil Judge (Junior Division), Balasore for declaration of joint title and possession and for permanent injunction against the defendants-petitioners.

The substratum of the case of the plaintiffs is that ''Ka'' schedule land belonged to Bhabatosh Bandopadhya and Asutosh Bandopadhya. Bhabatosh sold his share of Ac.0.015 dec. to Srimati Dei on 17.2.37 by a registered sale deed and Asutosh sold his share to Gobinda Patra and others on 29.6.37 by a registered sale deed. As there was dispute regarding possession, a suit for partition was filed by them being O.S. No. 57/1938 in which ''Ga'' schedule land was allotted to Srimati Dei, ''Gha'' schedule land was allotted to Govinda Patra and others and ''Una'' schedule land was kept for common use. After the death of Srimati Dei, her successor Kesab Barik sold his allotted land to Govinda Jee Chaturdev by means of a registered sale deed dated 27.4.1946. On the death of Kesab Barik, his legal heirs, i.e., his daughters Champa, Nirmala, Lalita and son Kantilal succeeded to his property. They had filed a suit for partition being O.S. No. 47/67-I. ''Kha'' schedule land was kept common over which two latrines, staircase and common pathway to latrine were constructed. Nirmala and Lalita sold their allotted lands as well as their joint interest in ''Kha'' schedule land to the plaintiffs-opposite parties by two registered sale deeds dated 22.9.1980. Since then the plaintiffs were/are in joint possession of ''Kha'' schedule land and exclusive possession of rest property. The plaintiffs have no other staircase to go to the upstairs except such common staircase and also no extra latrine. During major settlement operation, ''Kha'' schedule land is recorded jointly and exclusive property is recorded separately in ''Cha'' schedule property. As the defendants interfered in the possession of the plaintiffs over ''Kha'' schedule and ''Cha'' schedule lands, the plaintiffs filed the suit. Pursuant to issuance of summons, defendants 1 and 2 entered appearance and filed written statement and counter claim denying the assertions made in the plaint. While the matter stood thus, defendants filed an application under Order 6 Rule 17 CPC to amend the written statement. The plaintiffs filed an objection to the same. By order dated 2.2.2002, the learned trial court rejected the application.

Heard Mr. G.D. Kar, learned counsel for the petitioners and Mr. K.K. Rath, learned counsel for the opposite parties.

The proposed amendment consists of two parts. In the first part of the written statement, the defendants have admitted the joint character of the latrine. By the proposed amendment, they wanted to withdraw the same and stated that they have exclusive right to use the same. In the second part, the defendants intended to incorporate the plot number.

Really two points arise for consideration of this Court.

"I. Whether admission made by the defendants can be taken away by the proposed amendment?

II. Whether the proposed amendment is barred by limitation?"

Point No. I

In Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., , a suit was filed by the plaintiff for claiming a decree for Rs. 1,30,000/- against the defendants. The defendants in their written statement admitted that by virtue of an agreement dated 7.4.1967, the plaintiff worked as their stockist-cum-distributor. After three years, the defendants by application under Order VI Rule 17 sought amendment of written statement by substituting paras 25 and 26 with a new paragraph in which they took the fresh plea that the plaintiff was mercantile agent-cum-purchaser, meaning thereby they sought to go behind their earlier admission that the plaintiff was stockist-cum-distributor. Such amendment was rejected by the trial court and the said rejection was affirmed by the High Court in revision. The said decision of the High Court was upheld by the apex Court. The question arose before the apex Court as to whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.

The decision of the apex Court is a clear authority for the proposition that once written statement contained the admission in favour of the plaintiffs, by amendment such admission of the defendant can not be allowed to be withdrawn if such a withdrawal amount to totally displacing the case of the plaintiffs and would cause irretrievably prejudice.

In B.K.N. Narayana Pillai Vs. P. Pillai and Another, , the apex Court held as follows;

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In Ganesh Trading Co. Vs. Moji Ram, it was held: "It is clear from the foregoing summary of the main rules of pleadings and provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its Counsel is inefficient in setting out its case initially the short coming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."

The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to ah exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.

(Emphasis is laid)

The decision cited by Mr. Kar, in the case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., , is distinguishable to the facts of the case. There is no quarrel over the proposition of law that inconsistent or alternate plea can be made in the written statement. But then, in view of the pronouncement in the case of Ladha Ram (supra) that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.

Point No. II

The next question arises as to whether the proposed amendment is barred by limitation?

The written statement-cum-counter claim was filed on 14.3.1997. The application for amendment was filed on 17.1.2002 seeking declaration of right, title and interest over the suit property.

Article 58 of the Schedule to the Limitation Act, 1963, which has a bearing on the suit, reads as under:

"THE SCHEDULE Period of Limitation [See Section 2(j) and 3 ] First Division-Suits

In Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , the apex Court in para 63(6) of the report held that as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

On a cursory perusal of the proposed amendment, it is evident that the present amendment of the written statement-cum-counter claim is time barred.

In the wake of the aforesaid, the irresistible conclusion is that the petition sans any merit deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.