Rajendra Babu vs Krishangopal and ors.

Heard finally with the consent of both the parties. In this petition under Article 227 of Constitution of India, the petitioner has assailed the validity, legality and propriety of the order dated 13.03.2014 (Annexure P-1) passed in Civil Suit No.6-A/2013 by the Civil Judge Class- II, Sironj, District-Vidisha whereby, the application filed by the petitioner/defendant No.3 under Order 6 Rule 17

for amendment in the written statement has been rejected.

The brief facts leading to filing to this case are that the respondent No.1/plaintiff filed a suit for specific performance of agreement dated 13.02.2008 against the petitioner. For the purpose of pecuniary jurisdiction, the respondent No.1/plaintiff valued the suit at Rs.1,10,000/- and accordingly paid Court fees Rs.13,200/-. The petitioner has filed the written statement mentioning therein that the land has already been sold to him by the respondent/defendant No.1 by virtue of sale-deed dated 28.03.2012. It was further pleaded that the suit was not filed within limitation. However, by mistake it was pleaded in para 12 of the written statement that there is no objection on the question of the Court fees paid by the respondent No.1/plaintiff.

Subsequently, an application for amendment under Order 6 Rule 17 CPC was filed by the petitioner/defendant No.3 for the said amendment, the admission made in para 12 in the written statement is sought to be withdrawn with regard to the Court fees on the ground that the valuation done by the respondent No.1/plaintiff is arbitrary and the Court fees paid is also not proper. The respondent No.1/plaintiff submitted the reply to the application and objected the prayer on the basis of the proviso to Order 6 Rule 17 CPC. It was further pleaded that the petitioner has not averred that the proposed amendment was not in the knowledge of

the petitioner and the application has been moved only for the purpose of delaying the trial. Accordingly, the application deserves to be dismissed.

Learned trial Court has rejected the application mainly on the ground that the admission cannot be permitted to be withdrawn on the ground of estoppel.

Learned counsel for the petitioner/defendant No.3 has placed reliance on the judgment in the case of Akshya Restaurant Vs. P. Anjanappa reported in AIR 1995 SC 1498 wherein it has been held that :-

"It is settled law that even the admission can be explained and even in consistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 of CPC in permitting the amendment of the written statement". 6. Learned counsel for the petitioner also relied on the judgment passed by the cordinate Bench of this Court in the Case of Smt. Shakuntala Bai Vs. Rajendra Kumar and others reported in 2014(5) MPHT 415 to contend that the application is within time since the trial had not commenced. The cordinate Bench has held that filing of affidavits under Order 18 Rule 4 of CPC in lieu of examination-in-chief of witness would amount to "commencement of proceedings". It is further contended that the trial Court erred in coming to the conclusion that

the principle of estoppel would apply in as much as the pleadings which are sought to be substituted is entirely a legal question therefore, no estoppel would apply. The valuation of the suit is to be done irrespective of the fact that the Court fees is paid or not and this being purely a legal question no prejudice is caused to the respondent/plaintiff. The learned trial Court has wrongly rejected the application.

On the other hand, learned counsel for the petitioner/defendant No.3 has placed reliance on the judgment in the case of Chandrasen Shivlal Jain Vs. Suresh Chand Gulab Jain & Ors. reported in 2001 (3) MPLJ 191 to contend that serious prejudice shall be caused to the case of the respondent No.1/plaintiff in case the application is allowed. It is further submitted that since, the respondent No.1/plaintiff is not a party to the sale-deed therefore, he is not required to pay Court fees as demanded by the petitioner. The petitioner has not pleaded due diligence in the application under Order 6 Rule 17 of CPC.

Heard the learned counsel for the parties and perused the documents available on record.

It is not disputed that the trial has commenced in view of the fact that the affidavits/statement under Order 18 Rule 4 of CPC has not been filed. The respondent No.1/plaintiff has not been able to show that such affidavits/evidence was filed. Further in the case of Akshya Restaurant (Supra), the Apex Court has held that

it is a settled law that even the admission can be explained and even in consistent plea could be taken in the pleadings. The issue of valuation and the Court fees being legal questions, can be gone into by the Court below at any stage. In my opinion, the nature of the suit is not changed if amendment is allowed so also there would be no prejudice caused to the respondent No.1/plaintiff.

Considering the aforesaid, the learned trial Court has committed an error of jurisdiction in rejecting the application. Accordingly, the order dated 13.03.2014 (Annexure P-1) is set aside. The application under Order 6 Rule 17 of CPC stands allowed. The Court below is directed to proceed from that stage in accordance with law.

The petition is allowed to the extent indicated herein above.

No order as to costs.