Rajesh Kumar and Others vs Chaman Lal and Another

Amreshwar Pratap Sahi, J.—Heard Sri N.K. Chaturvedi, Learned Counsel for the petitioners and Sri H. P. Mishra, Learned Counsel for the respondent No. 1. The respondent No. 2 is also defendant in the suit along with the petitioners. The present writ petition arises out of orders passed on an amendment application in an appeal after the decision in the suit. The suit filed was for partition and one of the pleas raised in the plaint, copy whereby is Annexure-2 to the writ petition, was that one Shiv, who was the common ancestor of the plaintiff and the defendants, was the owner of the property in dispute and after his death, the property was distributed according to the shares alleged therein. These averments relating to the property being owned by Shiv having been inherited according to shares are recited in paragraphs 2 and 3 of the plaint. The written statement, which was filed by the petitioner-defendants before the trial court is Annexure-3 to the writ petition. Para 2 of the written statement categorically admits the contents of para 2 of the plaint.

The trial court proceeded to decree the suit for reasons disclosed therein including the reasons of the said admission contained in para 2 of the written statement. The crux, therefore, is that it was admitted by the defendant that the property in dispute, was the property of late Shiv.

At the stage of appeal, the defendant filed an amendment application contending that para No. 2 of the written statement had been a result of a typographical mistake inasmuch as instead of saying that para 2 of the plaint is denied, it was wrongly stated that it is being admitted. For this, the explanation given is that the word no has been left out after the word due to inadvertence in para 2 of the written statement. It should be permitted to be incorporated at the stage of appeal, but the said amendment application has been rejected on the ground that this completely changes the nature of the stand taken in the written statement and it amounts to resiling back from an admission, which is impermissible in law. Such a plea for amendment at the stage of appeal, therefore, should not be construed liberally and accordingly, the appellate court rejected the same.

Sri N.K. Chaturvedi, Learned Counsel for the petitioners submits that this rejection is erroneous inasmuch as the consistent view of the apex Court and this Court is to the effect that amendments, which are not likely to affect any rights of the parties or cause any prejudice should be liberally construed. Two decisions have been relied on, one in the case of Somesh Singh v. Phoolan Devi, 2009 (1) RD 358 and the other decision in 2006 (100) RD 220 (volume 30). Learned Counsel has further invited the attention of the Court to the case of Pooja Bala v. Kiran, 2007 (3) SCC (582) V. 19.

It is urged by Sri Chaturvedi that unless any substantial in justice is caused or the amendment is not bona fide then such an amendment should be allowed to prevent any failure of justice. If the mistake is such that it is only an infraction of the rule of procedure or is unintentional then such amendment should be construed liberally and allowed.

Sri Chaturvedi urges that a minor amendment sought in the written statement does not change the nature of the stand taken by the defendants, nor it otherwise would cause of any prejudice as the evidence which has been led, has to be considered by the appellate court as well. He, therefore contends that on the basis of the same evidence the amendment can be considered by the appellate court.

Sri Chaturvedi has heavily relied on the decision of the case of Sridharlal Srivastava Vs. Shiv Prakash Verma and Others, . He contends that the aforesaid case had almost similar facts and the same word no was also amended therein, which was allowed to be incorporated and the High Court held that it would amount to failure of justice, if the said amendment is set aside. In that case, the amendment had been allowed at the appellate stage.

Sri H.P. Mishra on the other hand contends on the basis of the decision relied upon by him in the case of Heera Lal v. Kalyan Mal, 1998 AIR 1 and Hari Singh, Advocate Vs. Mahaveer Sabha and Another, , that this amendment as sought by the petitioners is mala fide as it seeks to change the entire stand taken in the written statement and resile back from the admission made. The contention, therefore, is that such an amendment was impermissible at the appellate stage as there is no valid explanation as to why the defendant did not choose to carry out the said amendment in spite of the fact that he had full opportunity before the trial court.

He further submits that if any mistake or error of drafting was a typographical mistake then evidence should have been led to that effect, but the bold statement of fixing the responsibility on the lawyer is not sufficiently explained nor is it a cogent ground for allowing an amendment.

Sri Mishra has taken the Court through the statement of the defendant witnesses including Birju, urged that if the mistake was so apparent, the same could have been explained at the time of evidence or even during cross-examination of the defence witnesses. No such attempt has been made. To the contrary, the statement made is in conformity with the admission made in the written statement. He, therefore, submits that this attempt on the part of the defendant to seek an amendment at the appellate stage is a complete afterthought and is a mala fide amendment sought with a view to resile back from the said admission. He further contends that if this amendment is allowed to be incorporated, the same would change the entire nature of the defence, which would be contrary to the law laid down by the Apex Court as referred to herein above.

Having heard Learned Counsel for the parties, having perused the records and decisions relied upon and the admission made in the written statement the same cannot be allowed to be resiled back under the garb of an amendment. Sri Chaturvedi submits that the alleged admission in the paragraph 2 of the written statement stands explained by a bare perusal of the recitals contained in paragraphs 18 to 23 of the written statement and in the facts and circumstances of this case, the amendment does not seek to change the nature of the stand taken by the petitioners. This argument cannot be accepted inasmuch as paragraphs 18 to 23 of the written statement do not amount to any explanation about the status of Shiv owning the property. To the contrary Shiv has been acknowledged, as the original owner from whom the property was sold to one Ganga and Dhuyin Tengaar Teli, where after it is alleged to have been sold to the defendants. Even assuming that this was not so, then the property could not have been purchased had it not belonged to Shiv.

In this view of the matter that it does not appeal to reason to allow the defendants to resile back from the admission in paragraph 2 of the written statement. The statements made by the defence witnesses also do not explain the said admission. It is, therefore, clear that the statement made before the trial court in the pleadings was sought to be resiled back, hence the same is impermissible and a liberal view thereon cannot be taken. The decisions that have been relied upon by the counsel for the petitioners do not come to his aid and the decision in the case of Sridhar Lal Srivastava (supra) does not advance the stand taken by the petitioner in this case on facts. There the Court was of the view that the error was a typing error. In the instant case, the facts are distinguishable as in the opinion of the Court there was no material to construe that it was a typing error and to the contrary the conclusion drawn herein above and by the courts below indicate that the amendment sought, was a clear attempt to resile back from an admission. Accordingly, none of the decisions relied upon by the petitioners come to their aid. The contention of Sri Chaturvedi is that no prejudice would be caused as the same evidence has to be assumed by the appellate court. Needless to say that if that is the stand then the petitioners can also prove their case or otherwise on the same evidence, which is available with the appellate court without seeking any amendment.

The writ petition therefore, lacks merit and it is accordingly, dismissed.