Rajinder Paul Sharma and Others vs Suraj Bhan and Another

K. Kannan, J.—The revision petition is against the order rejecting a plea for amendment of the written statement at the fag end of the trial. The suit had been filed by the plaintiff for possession and contention in defence was that the property in possession of the defendants was not as a licencee in the manner claimed by the plaintiff but in exclusive possession and in assertion of his own right. He was pleading also a case of family settlement under which the property is said to have been granted to him. He relied on a Will that is said to have been executed by the original owner Bhagwanti that in affirmation of the settlement, she executed a Will but it was to be construed only as a family settlement. After the close of the trial, he brought an amendment to contend that he even if he was treated as a licencee in the manner claimed by the plaintiff, it was irrevocable since he was allowed to put up permanent structure and, therefore, the licence could not be revoked and the possession secured. The application for amendment of the written statement was resisted by the plaintiff to contend that the suit was filed in the year 1997 and the amendment was brought substantially late by a malafide plea which was inconsistent with the earlier plea of adverse possession. The court accepted the contention and dismissed the application for amendment.

In the revision petition, it is contended by the counsel for the petitioner that it is the privilege of the defendant to take even inconsistent pleas and the parameters that applied for amendment of the plaint shall not be applied to the amendment of the written statement. The counsel would refer to some decisions to hold that even a claim for irrevocability of the licence in the manner contemplated u/s 60(b) of the Easement Act would require proper pleadings and he was trying to make a plea, which is essentially a statement in defence by reference to a legal position and the counsel also states that he will not press for any further evidence on the basis the amendment and he would advance arguments on the basis of the evidence that has already been led.

Learned counsel for the plaintiff states that the defendant has already pleaded a case of adverse possession, he cannot now contend inconsistently that if he could be regarded as a licencee, even then it would be taken as irrevocable. The counsel further states that malafides in amendment is the test for rejection, as has been held by several decisions of this court. The counsel will also have an argument to make that the principle that defendant can take inconsistent pleas should not be applied in this particular case, where all the issues are cast on the defendant to establish mainly his defence regarding a family settlement, his plea regarding adverse possession and his contention of a Will as affirmation of the family settlement. According to him, if the burden of proof is only on the defendant on the contentions raised by him, he shall not be permitted to bring the amendment to the statement which is inconsistent to his earlier pleas.

The case would be required to be handled only on the first principles of law. The principle is that any amendment which cannot constitute any prejudice on issue of limitation or where an admission made is sought to be withdrawn shall always be permitted, unless there are special circumstances, which would disentitle the defendant. In this case, the plea which is brought does not bring in any new prejudice to the plaintiff. The plaintiff himself would succeed in this case, where all the issues are said to have been cast on the defendant and the defendant fails to establish each one of his defences. The defence regarding adverse possession or defence relating to the genuineness of Will or the enforceability of the family settlement would have to be established only by the defendant. The plaintiffs suit for possession itself is founded on a plea that the defendant is merely a licencee. The defendant has denied such contention. He has now stated that if he is a licencee it is irrevocable. I find this to be a purely legal contention which dies not require any further evidence. No prejudice could be caused and the court ought to have allowed the application for amendment. A person who denies the title of the plaintiff cannot lose a right to set up a plea of irrevocable licence. The delay in filing the application for amendment after lapse of considerable period when the suit was pending for 11 years, the petitioner shall be burdened with costs, which I assess at Rs. 15,000/- as payable by the defendant to the plaintiff within a period of two weeks from the receipt of copy of this order. The impugned order is set aside and the revision is allowed on the above terms. However, it is made clear that nothing stated herein shall have any bearing on the final disposal of the suit on merits.