IN THE HIGH COURT OF BOMBAY AT GOA
Writ Petition Nos. 691 of 2008 and 8 of 2009
Decided On: 18.03.2009
Shri Armando Pereira
Shri Jude D’Souza S/o John D’Souza and Ors.
Hon’ble Judges/Coram: C.L. Pangarkar, J.
Citation: 2009 AIR Bom 2748
1. These two writ petitions can be disposed of by a common judgment since the parties to both the petitions, are common. The petitioners are the original defendant Nos. 1 and 2 while the respondent Nos. 1 to 5 are the original plaintiffs and the respondent Nos. 6 to 10 are the original defendants. The parties shall hereinafter be referred to as the plaintiffs and the defendants.
2. The facts giving rise to these petitions, are as follows:
The plaintiffs contend that they are the sons of late Paulina D’Souza, who died on 18.11.1972. By virtue of a deed of succession dated 07.03.1990, the plaintiffs have been declared as successor of late Paulina D’Souza. She was also known as Dorathina. The defendant Nos. 1 and 3 are the real brothers while the defendant Nos. 2 and 4 are their wives. The defendant Nos. 5 to 10 are the tenants in the suit property. By virtue of sale deed dated 28.10.1967, the defendant No. 3 Jose and Paulina D’Souza became the owner of the plot No. 12 having an area of 488.25 square metres. In the year 1968-1969, said Paulina and Jose along with the defendant No. 1, decided to construct a building in the property purchased by Paulina and the defendant No. 3. Accordingly, plans were submitted to the Municipal Council for permission to make construction. Plan was sanctioned by the Municipal Council. The said sanction was granted in the name of Paulina and the defendant No. 1, who was representing the defendant No. 3 for the sake of convenience. Occupation certificate was also issued. The plaintiffs contend that this suit property was jointly owned by Paulina and Jose. They had spent equal amount for the construction of the said building. It is contended that the supervision and construction of the building, was entrusted to the defendant No. 1 upon oral understanding. Paulina had paid a sum of Rs. 61,668/- towards the costs of the completed work in the year 1970. For the construction of the second floor, the parties were short of funds and, therefore, they decided to obtain a loan of Rs. 40,000/- from the bank and accordingly, ground floor of the suit building, was mortgaged with the bank and the loan of Rs. 40,000/-, was obtained. It was also agreed that rent of the ground floor, collected by the defendant No. 1 should be utilised for construction of the first floor. The mother of the plaintiffs had executed a General Power of Attorney in favour of the defendant No. 1 to enable to him to collect rent and supervise the construction work. The plaintiffs submit that the defendant No. 1 has been collecting the rent, but he never gave any accounts to the plaintiffs in spite of repeated demands. The plaintiffs ultimately, came to Goa and they found that the defendant Nos. 1 and 3 had refused to cooperate with the plaintiffs. Through the intervention of one Mariano, the plaintiffs got the possession of one of the flats. The plaintiffs prayed for a decree of Rs. 4,94,974/- towards the rent illegally collected by the defendant Nos. 1 and 3 and for a declaration that the plaintiffs are the co-owners of the flat Nos. 2,4,6 and shop No. 3 and 4 in Pereira Building.
3. The suit was resisted by the defendant No. 1. It is the contention of the defendant No. 1 that although the plot was purchased in the name of the defendant No. 3, the entire consideration was paid by the defendant No. 1. He is the exclusive owner of the suit property. Neither the plaintiffs nor the defendant No. 3 have any right in the suit property. The entire construction was done by the defendant No. 1 and he had spent for the same. It is further contention of the defendant No. 1 that the construction company, to whom a contract was given for construction, had filed a suit against the defendant No. 1 and at that time, neither the plaintiffs nor the defendant No. 3 came forward to pay the amount and the defendant No. 1 had to satisfy the decree. Further, it is contention that the plaintiffs have in fact trespassed into the flat No. 4 and thus, have no right to be in possession.
4. The defendant No. 3 had filed an identical written statement in the suit.
5. The defendant Nos. 1 and 2 had filed a civil suit No. 112/2005 against the defendant Nos. 3 to 5 and others. Since the defendant No. 3 was made a party in that suit, he received the summons along with the copy of the plaint in the said suit. It is the contention of the defendant No. 3 that he was in fact not aware of the contents of the suit as well as written statement said to have been filed by him in Civil suit No. 140/1992. The defendant Nos. 3 and 4 submit that after reading the plaint in Civil Suit No. 112/2005, the defendant Nos. 3 and 4 felt that they were cheated by the defendant No. 1 and their Lawyer and, therefore, they moved an application for amendment of the written statement. The learned Judge of the Trial Court, allowed the application for amendment of the written statement. The defendant Nos. 1 and 2 filed an application purporting to be an application under Section 151 of Civil Procedure Code and contended that under the guise of the amendment of the written statement, the defendant Nos. 3 and 4, have in fact substituted their entire written statement, which they could not have done. They, therefore, contended that such substitution of the written statement, should not have been allowed and the defendants should have been allowed to carry out the amendment alone. This application was rejected by the Trial Court. Hence, these two writ petitions.
6. I have heard the learned Counsel for the petitioners and the respondents.
7. The defendant Nos. 3 and 4 had moved an amendment application because as already said, they felt that their written statement was not drafted according to their instructions and they have in fact been cheated at the instance of the defendant No. 1. Although the application for amendment was objected to, the learned Judge of the Trial Court, had granted the application.
8. The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No. 1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs’ objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No. 1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows:
Section 17- Admission – An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.” Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietary or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are “any other party” and not necessarily an adverse party. It could be either the plaintiff or the defendant also.
The above discussion clearly goes to show that the codefendant does have a right to challenge or oppose the amendment sought to be made by the other defendants.
9. The defendant Nos. 3 and 4 filed a written statement in civil suit No. 140/1992 on 08.01.1993. The amendment application was filed by them on 07.03.2006 i.e. more than 13 years after the written statement was filed. The delay is inordinate. But the delay in all cases, cannot be fatal because that party may be pleading new events or the new events may prompt the party to mould the defence. But the fact here is that, the application for amendment, is filed 13 years after the original written statement is filed. Now, the contents of the amendment application seeking amendment to the written statement, become very material. They show that the defendant No. 1 is the real brother of the defendant No. 3 and it is alleged that because of that, the defendant Nos. 3 and 4 had trust in defendant No. 1. It is specifically alleged that the defendant No. 1 approached the defendant Nos. 3 and 4 and told them that he would engage a Lawyer for them and the defendant Nos. 3 and 4 would have to sign the papers prepared by the Advocate. It is further alleged that they signed the blank Vakalatnama. Further, they contend that they were asked by the defendant No. 1 to come to the Court and sign the written statement before the Court Superintendent and accordingly, the defendant Nos. 3 and 4 went to the Court and signed the written statement, but they were not supplied the copies of the written statement and contents of the written statement, were not explained to them. The defendant Nos. 3 and 4 contend that they came to know of the contents of this written statement in civil suit No. 140/1992 and the wrong statements made therein only when they received a copy of the plaint in civil suit No. 112/2005. They contend that they, therefore, issued a notice to their Advocate Shri Joshi withdrawing the Vakalatnama. It is in this background that the amendment of the written statement was sought by the defendant Nos. 3 and 4. The learned Counsel for the respondent, made much ado about the conduct of the Lawyer appearing for the defendant Nos. 3 and 4 and he submits that the conduct of the said Lawyer, was unbecoming and he had drafted the written statement without letting the defendants know the contents. The conduct of the Lawyer here, in fact becomes immaterial. I would only say that prima facie, there is no substance in the contention about the conduct of the Advocate. Prima facie, it appears that both the defendants Nos. 3 and 4 are educated persons. They have signed in English. They had gone with their brother to the Court and had signed the written statement in presence of the Superintendent of the Court. Further, the contents of the amendment application, do not make any kind of allegations against the Lawyer, but all the allegations are made against the defendant No. 1, who is the brother of the defendant No. 3. The learned Counsel for the respondent, should not have, therefore, made an ado about the conduct of Shri Joshi Advocate. It is difficult to assume at this stage that the defendant Nos. 3 and 4 did not know the contents of the written statement for all these 13 years. I may mention further that last para of the old written statement,i.e. para 31 and the contents of that para, are very material. The defendant Nos. 3 and 4 have signed the written statement, which is below that last para. It is difficult to accept that without reading that last para, they had signed the written statement. I may observe here that the learned Judge of the Trial Court while deciding the suit, should not get influenced by these observations because these observations are prima facie observations. Be that as it may, the fact is that the defendants now want to resile from what is stated in the original written statement. We have seen that there is an inordinate delay of 13 years in filing an amendment application. It is difficult to accept prima facie that the defendants were unaware of the contents of the written statement and they came to know of it only on service of plaint in second suit. There is no other explanation in the amendment application for such delay and I do not find the explanation for delay as stated, to be very convincing. The Supreme Court in Gurdial Singh V.Raj Kumar Aneja reported in MANU/SC/0077/2002 : 1SCR817 observes as follows:
15. The Court may allow or refuse the prayer for amendment in sound exercise of its discretionary jurisdiction. It would, therefore, be better if the reasons persuading the applicant to seek an amendment in the pleadings as also the grounds explaining the delay, if there be any, in seeking the amendment, are stated in the application so that the opposite party has an opportunity of meeting such grounds and none is taken by surprise at the hearing on the application.
10. Now this takes me to consider the manner in which the amendment application is drafted. I shall deal with the merits of the application separately. The learned Counsel Shri Sonak for the petitioner, submits that the amendment application must make it clear as to what portion is to be added and what portion is to be deleted if at all any portion is to be deleted. He submits that the application does not make it clear if the original paragraphs are to be deleted or they are to remained as they are. I shall reproduce here the actual contents of the paragraph 10 of the application by way of illustration:
10. The proposed amendments shall be as under:
I) On page 1 of the following paragraph shall be added as para 1
with reference to para 1 of the plaint The defendants No. 3 and 4 admit that the plaintiffs are the sons of Late Smt. Paulina D’Souza, widow of John D’Souza the rest of the contents of para 1 are a matter of record and the plaintiffs are put to strict proof thereof”
II) On page 1 the contents of para 1 shall be amended as follows:
The Defendants No. 3 and 4 admit that the Defendants No. 5 is a tenant of Shop No. 4 in the Pereira Building from 1970 and Defendant No. 6 is a tenant of Shop No. 3, defendant No. 7 is a tenant of flat No. 6 and Defendant No. 8 and 9 is a tenant of the shop beneath the staircase of the building and the Defendant No. 10 is the tenant of the flat No. 2 on the ground floor. The Defendant No. 3 and 4 state that the late Mrs. Paulina D’Souza and Defendant No. 3 mutually divided the said property lot No. 12 and said building constructed therein known as “Pereira Building” in equal proportions as a result Shop No. 1 and 2 and Flat Nos. 1,3 and 5 were taken by Defendant No. 3 and 4 and shop Nos. 3 and 4 and flats Nos. 2,4 and 6 were taken by late Smt. Paulina D’Souza. The Defendant No. 3 and 4 state that they had allowed the Defendant No. 1 to lease out their said shops, and said flats and to collect the rents on their behalf. The Defendants Nos. 3 and 4 executed a Power of Attorney in favour of Defendant No. 1. The Defendants No. 3 and 4 further admit that the late Smt. Paulina D’Souza executed a Power of Attorney dated 4th October 1971 in favour of Defendant No. 1 to lease out and collect the rents of the other half o the said building. The Defendants Nos. 3 and 4 admit that the Plaintiffs No. 1 is occupying Flat No. 4. The Defendants No. 3 and 4 state that they are the co-owners in possession of half of the said property and said building.
III) On Page 2 the following para be added as para 2(a)
with reference to para 3 of the plaint The Defendants No. 3 and 4 admit that the Defendant No. 3 Shri Jose Sebastiao Pereira and Late Smt. Paulina D’Sauza purchased the suit property Plot No. 12 admeasuring 488.25 sq. mts. by virtue of Deed of Sale with partial discharge and of debt with Mortgage dated 28th October 1967 and are the only co-owners in possession of the said property.
XXXI) On Page 10 the contents in Para 28 shall be amended to read as follows:
With reference to para 30 of the plaint:
The Defendants No. 3 and 4 admit that the cause of action have arisen in favour of the plaintiffs to claim ownership rights to half of the suit property and half of the suit building, the rest of the contents are a matter of law and need no comments.
XXXII) On Page 11 the contents in Para 30 shall be amended to read as follows:
With reference to para 31 of the plaint:
The Defendants No. 3 and 4 state that the Suit building has been properly valued for the purpose of jurisdiction.
11. If this is to be added as para 1 what is to happen to original para 1. It is not clear if it has to be deleted or to remain as it is. Again another para is shown to be added as para 1. There cannot be two paragraphs No. 1. As stated earlier, it is not clear what is to be omitted or altered. The Supreme Court in a decision reported in Gurdial Sing v. Raj Kumar Aneja reported in MANU/SC/0077/2002 : 1SCR817 , has held as follows:
13. Before parting we feel inclined to make certain observations about the loose practice prevalent in the subordinate courts in entertaining and dealing with applications for amendment of pleadings. It is a disturbing feature and, if such practice continues, it is likely to thwart the course of justice. The application moved by the occupants for amendment in their written statement filed earlier did not specifically st out which portions of the original pleadings were sought to be deleted and what were the averments which were sought to be added or substituted in the original pleadings. What the amendment applicants did was to give in their applications a vague idea of the nature of the intended amendment and then annex a new written statement with the application to be substituted in place of the original written statement. Such a course is strange and unknown to the procedure of amendment of pleadings. A pleadings, once filed, is a part o the record of the court and cannot be touched, modified, amended or withdrawn except by the leave of the court. Order 8 Rule 9 CPC prohibits any pleadings subsequent to the written statement of a defendant being filed other than by way of defence to a set-off or counterclaim except by the leave of the Court and upon such terms as the court thinks fit. Section 153 CPC entitled “General power to amend” provides that the court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Order 6 Rule 17 CPC confers a discretionary jurisdiction on the court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The Rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Unless and until the Court is told how and in what manner the pleading originally submitted to the Court is proposed to be altered or amended, the court cannot effectively exercise its power to permit amendment. An amendment may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation or may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on. It is, therefore, necessary for an amendment applicant to set out specifically in his application, seeking leave of the court for amendment in the pleading, as to what is proposed to be omitted from or altered or substituted in or added to the original pleading.
12. The learned Judge of the Trial Court did not at all consider these aspects and allowed the application. He should have, therefore, called upon the defendant Nos. 3 and 4 to explain and clear as to which paragraphs were to be omitted or altered. That having not been done, the amendment could not have been allowed. In the case at hand, the defendants under the garb of amendment of written statement, have completely substituted the original written statement by a new one. This, the defendants could certainly not have done, in view of the above proposition of law laid down by the Supreme Court. Shri Sharma, the Counsel for the respondents, had placed before me a decision reported in Gurdial Singh V.Raj Kumar Aneja reported in AIR 2002 Supreme Court 1003. I would quote the observation in para 18 of the said judgment:
18. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase “consequential amendment” finds mention in the decision of this Court in Bikram Singh and Ors. v. Ram Baboo and Ors. MANU/SC/0013/1981 : AIR1981SC2036 . The expression is judicially recognized. While granting leave to amend a pleading by way o consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it an be applied by way of an independent or primary amendment.
13. Thus, it is always to be seen by the Judge whether the amendment that is carried out, is as allowed or not. In the instant case, the defendant No. 1 had objected the manner in which the amendment was allowed to be carried out by a substitution of written statement itself. The learned Judge overruled that objection by order dated 02.01.2009 which is under challenge in Writ Petition No. 8/2009. Certainly, the learned Judge was bound to see if there was anything in the amendment application praying for omitting certain paragraphs and allowing to substitute entire written statement. Without looking into that, he had rejected the objection taken by the defendant No. 1. That order dated 02.01.2009, was clearly contrary to the law laid down by the Supreme Court.
14. The next ground on which the order allowing amendment application is challenged, is withdrawal of admission of the defendant Nos. 3 and 4 in the original written statement. I have quoted above the contents of the amendment application and have observed that there is nothing clear as regards the deletion or omission of paragraphs in the original written statement. I may quote para No. 1 in the original written statement at page 59 in the paper book and para 1 of the new written statement as well as para 31 in both the written statements for the purpose of comparison as follows:
Para 1 of original written statement :- With reference to para 2 of the plaint, this Defendant states that though the property is purchased in the name of Defendant No. 3 the same was purchased by Defendant No. 1 and Defendant No. 1 was entitled to collect the rent in respect of the premises situated in the building namely
Pereira Building” in the suit property. This Defendant states that the den 10 has caused to be the tenant in respect of Plot No. 2 on the ground floor. It is denied that the Plaintiff was in conclusive possession of Plot No. 4 from September 1989. In fact Plaintiff No. 1 with the assistance of some goondas forcibly took possession of the Plot No. 4 in the month of November 1990. Prior to that Flat No. 4 was leased to Maruthi Prabhu who vacated the suit property in the month of September 1990. It is denied that Defendant No. 1 was collecting the rents on the basis of Power of Attorney executed by the mother of the Plaintiffs on 4th October 1971.
Para 1 of new written statement:
With reference to para 1of the plaint:
The Defendants No. 3 and 4 admit that the plaintiffs are the sons of Late Smt. Paulina D’Souza, widow of John D’Souza the rest of the contents of para 1 are a matter of record and the plaintiffs are put to strict proof thereof.
Para 31 of Original Written Statement:
The Defendant No. 3 states that half the property was purchased by Defendant No. 1 in the name of Defendant No. 3 and the right to the other half belonging to Paulina D’Souza was purchased by the Defendant No. 1 and being so, the plaintiffs are entitled to an amount of Rs. 73,788/- only in terms of agreement dated 25.2.72 from the Defendant No. 1.
Para 31 of the new written statement:
With reference to para 31 of the plaint:
The Defendants No. 3 and 4 state that the Suit building and suit property has been properly valued for the purpose of jurisdiction.
15. It is apparent that there is complete omission of the original para and substitution of a new. Particularly para 31 in the original written statement, contains an admission that the defendant No. 1 had purchased the property in the name of the defendant No. 3. Now by omitting this paragraph in the new written statement, the defendant No. 3 certainly wants to withdraw the admission. There is no manner of doubt in the instant case that by deleting of the para in the original written statement, the defendant No. 3 seeks to withdraw the admission. The question, therefore, is whether the defendant No. 3 could have done that. The Law seems to be well settled by a catena of decisions that admission cannot be withdrawn, but at the most, can be explained. The instant case would not be a case of only raising inconsistent pleas. The law is also well settled that the defendant has certainly a right to raise inconsistent pleas, but they should not mutually destructive. See Steel Authority of India Ltd. v. Union of India reported in MANU/SC/4245/2006 : (2006)IIILLJ1037SC . The Supreme Court in Heeralal v. Kalyan Mal and Ors. reported in MANU/SC/0829/1998 : AIR1998SC618 , has observed with regard to the withdrawal of the admission as follows:
Now it is easy to visualize on the facts before this Court in the said case that the defendant did not seek to go behind his admission that there was an agreement on 25.1.1991 between the parties but the nature of the agreement was sought to be explained by him by amending the written statement by submitting that it was not an agreement of sale as such but it was an agreement for development of land. The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned Counsel for the respondents. Even that apart, the said decision of two learned Judges of this Court runs counter to a decision of a Bench of three learned Judges of this Court in the case of Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram And Co. In that case Ray, C.J., speaking for the Bench had to consider the question 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. In that case 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-cumpurchaser, 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 this Court by observing as aforesaid. This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of the three- member Bench of this Court was not brought to the notice of the Bench of two learned Judges that decided the case in Akshaya Restaurant. In the latter case it was observed by the Bench of two learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant proceed on an assumption that it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However the aforesaid decision of the three-member Bench of this Court in Modi Spg. Is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff’s case and cause him irretrievable prejudice.
16. This Court in Janu Laxman v. Pandurang Laxman reported in MANU/MH/0292/2001 : (2001)3BOMLR678 has observed as follows:
Having considered the rival submissions at the outset it needs to be mentioned that reliance placed on the decision of the Apex Court in the case of Akshaya Restaurant (supra) squarely overlooks the subsequent decision of the Supreme Court reported in the case of Heeralal v. Kalyan Mal and Ors. MANU/SC/0829/1998 : AIR1998SC618 , which has held that the view taken in Akshaya Restaurant’s case is per incuriam. According to the subsequent decision of the Apex Court once written statement contains an admission in favour of the plaintiff, by the amendment such admission of the defendant cannot be allowed to be withdrawn, if such withdrawal displaces the case of the plaintiff and which causes irretrievable prejudice. The fact situation of the present case is squarely covered by the principles enunciated by the Apex Court in Heralal’s case (Supra). Insofar as the decision of the Supreme Court in the case of Panchdeo Narain Srivastava’s (supra) is concerned the same in my view is an authority on the proposition as to the justification for rejecting the amendment in exercise of revisional jurisdiction. The learned Counsel has placed reliance on the observations made in para 3 of the said decision that an admission made by the party may be withdrawn or may be explained away and it cannot be said that by amendment an admission of fact cannot be withdrawn. The observations made by the Apex Court in the said decision are obviously contextual. In any case in the said decision the Apex Court has not taken the view that it is open to the party to withdraw the admission so as to displace the case of the other side and cause irretrievable prejudice. Insofar as the reliance placed on the decision of the Delhi High Court (AIR 1986 Delhi, 116) is concerned the same does not deal with the fact situation as in the present case but the principle enunciated by the Apex Court in Heeralal’s case squarely applies and therefore, I find no reason to interfere with the view taken by the trial Court that if the petitioner is allowed to withdraw the admission in the written statement it will irretrievably prejudice the respondent – plaintiff inasmuch as, the stands taken in the original written statement and the proposed amendment are diametrically opposite in the context of the claim for assertion of title with regard to the suit property. Hence, this petition fails and dismissed with no order as to costs.
17. In Gautam Sarup v. Leela Jetly and Ors. reported in MANU/SC/7401/2008 : (2008)7SCC85 , the Supreme Court observes as follows:
14. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore.
16. A thing admitted in view of Section 58 of the Evidence Act need not be proved. Order 8 Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order 12 Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one’s stand inter alia in regard to the extent or effect of such admission, but it is another thin to say that a person can be permitted to totally resile therefrom. The decisions of this Court unfortunately in this regard had not been uniform. We would notice a few of them.
28. What, therefore, emerges from the discussions made herein before is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” Thus, it is clear that admissions can be explained only and cannot be withdrawn.
18. Shri Sharma had cited a ruling reported in Panchdeo Narain v. Jyoti reported in MANU/SC/0019/1983 : AIR1983SC462 in support of his submission. I would prefer to follow the decision reported in Gautam Sarup v. Leela Jetly reported in 2008 (7) SC 85 being the latest decision.
19. Shri Sharma submits that it is not a withdrawal of admission as such, but pleading made out of compulsion. He also submits that if the defendant Nos. 3 and 4 do not know the contents of the written statement, how could the contents therein be taken as their admission. He submits that the defendant is taking a new stand and even if he is taking inconsistent stand, that is not barred. He relied on a decision of Supreme Court in Usha Balashaheb Swami v. Kiran Appaso Swami reported in MANU/SC/7318/2007 : AIR2007SC1663 . The Supreme Court observes as follows:
Since we have already held that in the case of amendment of a written statement, the defendant is entitled to take new defence and also to plead inconsistent stand and in view of our discussions made hereinabove that by making the application for amendment of the written statement, admission was not at all withdrawn by the appellants nor a totally inconsistent plea was taken by the appellants in their application for amendment of the written statement, the High Court had failed to appreciate that by the proposed amendment, the appellants were not withdrawing their admission in respect of the half share in the ancestral property rather they only added that the plaintiff and defendant Nos. 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half share in the property of late Veersangayya. That apart, it appears from the record that the written statement filed by the appellants was before the death of defendant No. 1 (first wife of Appasao.) After the death of defendant No. 1, when plaintiff and defendant Nos. 2 to 8 claimed themselves as heirs and legal representatives of defendant No. 1, the appellants sought amendment of the written statement challenging the legitimacy of plaintiff and defendant Nos. 2 to 8. In view of the discussions made hereinabove, we do not think that it was impermissible in law for the appellants to seek amendment of the written statement in the manner it was sought for.
The facts of the reported case, are totally different. In the reported case, their Lordships, as a fact, found that it was not a case of withdrawal of the admission.
20. The defendants have signed their written statement. They did not seek amendment thereof for the last 13 years. Since they have signed their written statement, contents in the written statement, have to be treated as their admission. It is, therefore, that the law says that if such an admission was given under certain circumstances, a party has a right to explain under what circumstances, such admission was given. It is upon such explanation that the Court has then to decide as to what value should be attached to such admission.
21. After having gone through the original pleadings and the amended written statement, which is in fact a replacement by a new written statement, one would find that the defendant Nos. 3 and 4 make a total volte-face. It is expected of the Trial Court to go through each and every paragraphs of the proposed amendment and determine the question if it is only an explanation or inconsistent plea or withdrawal of the admission. It seems to me that the learned Judge of the Trial Court, did not consider the fact of entire deletion of the paragraphs from the original written statement and what was being sought to be pleaded by the amendment. He did not consider the effect thereof and therefore, promptly allowed the application. This takes me to consider the question if the defendants had not read the contents of the written statement, those contents could be treated as their admissions. The original written statement bears the signature of both the defendants and both have signed in English. The written statement is in English. It was signed by them in presence of Superintendent of the Court. They were not explained for the 13 years. When, therefore, they have signed the written statement, the contents therein are presumed to be written according to their instruction. They may explain by addition of a para as to how the fraud was played on them and, therefore, those admissions do not bind them. But they could not be allowed to say that it is not their written statement at all. If the contents of amendment application, are read, one would find that the defendants tried to explain elaborate transaction between the plaintiffs and their predecesor in title and the defendant Nos. 1 and 3. There is not a word how that written statement came to be filed and who had given instructions about the contents of the written statement. Hence, there is no manner of doubt that the defendants simply want to withdraw the original written statement and substitute the same with new one, and thus withdraw the admission. This they cannot do.
22. Shri Sharma, the Counsel for the respondent, submits that the Trial Court has used discretion and this Court cannot, therefore, interfere with it in writ jurisdiction. He relied on a decision of Supreme Court in Puran Ram v. Bhaguram and Anr. reported in AIR 2008 SC 1960. The Supreme Court observes as follows:
14. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial court, was allowed. We are of the view that the High Court ought not to have interfered with the order of the trial court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary.
23. The High Court certainly cannot interfere with the order passed by the Courts below in writ jurisdiction unless it is one without jurisdiction or perverse. To my mind, both the orders of the Trial Court are absolutely perverse. They were passed without any application of mind. He did not consider the question whether the defendants were withdrawing the admission. He did not consider what is the effect of substitution of a new written statement. He did not care to consider which part is being omitted and which part is being substituted and what is the effect thereof. For this reasons, I find that both the orders passed by the Court below, were perverse and, therefore, need to be set aside in exercise of the writ jurisdiction. In the circumstances, the writ petition must succeed.
24. The learned Counsel had placed before me the following decisions:
i) Uttam Ratnakar v. Premanand Fotu Fadte reported in MANU/MH/0485/1996 : 1997(2)BomCR81
ii) Madhao v. Yeshwant reported in MANU/MH/0103/1974 : AIR1974Bom12
iii) Basant Singh v. Janki Singh reported in MANU/SC/0284/1966 : 1SCR1 .
iv) Kumaraswami v. D.R. Nanjappa reported in MANU/TN/0224/1978 : AIR 1978 Mad 285.
v) Modi Spinning and Weaving Mills Co. Ltd. and 40 Anr. v. Ladha Ram & Co. reported in MANU/SC/0012/1976 : 1SCR728 .
Vi) Mooljee Lukhmidas v. S.M. Kapadia reported in MANU/MH/1494/2005 : 2006(3) All MR 52.
vii) Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N. reported in 2007 ALL SCR 734.
viii) Chander Kanta Bansal v. Rajinder Singh Anand reported in 2008 AIR SCW 3225.
ix) Narayanappa v. Suryanarayana reportd in MANU/TN/0027/1950 : AIR 1950 Mad 46.
x) Bharat Petroleum Corp. Ltd.V.Precious Fin. Inv.Pvt. Ltd. reported in MANU/MH/0729/2006 : 2006(6)BomCR510 .
xi) S.S.V. Shankar v. M.R. Rampyare reported in 1994(1) Mah L R 236.
xii) Dehri Rohtas Ligh Railway Co. Ltd. v. District Board, Bhojpur and Ors. Reported in MANU/SC/0110/1993 : (1992)2SCC598 .
xiii) Ajodhya Prasad v. Bhawani Shanker reported in MANU/UP/0001/1957 : AIR1957All1 .
xiv) Bharat Singh v. Bhagirathi reported in MANU/SC/0362/1965 : 1SCR606 .
xv) Bachhraj Factories Pvt. Ltd. v. Paramsukhdas reportd in MANU/MH/0027/1993 : AIR1993Bom175 .
xvi) Mohammed Yousuf v. Bharat Singh reported in MANU/RH/0229/1999.
xvii) Vidyawati Gupta and Ors. v. Bhakti Hari Nayak reported in MANU/SC/0921/2006 : AIR2006SC1194 .
xviii) State Rep. By D.S.P. S.B.C.I.D., Chennai v. K. v. Rajendran reported in MANU/SC/3909/2008 : 2009CriLJ355 .
xix) Pundlik Jalam Patil v. Exe. Engt. Jalgao Medium Project reported in MANU/SC/4694/2008 : 2008(6) All MR 954.
xx) B.K. Muniraju v. State of Karnataka reported in MANU/SC/7166/2008 : AIR2008SC1438 .
xxi) Roshan Deen v. Preeti Lal reported in MANU/SC/0701/2001 : (2002)ILLJ465SC .
xxii) Andhra Bank v. ABN Amro Bank N.V. Reported in MANU/SC/2907/2007 : AIR2007SC2511 .
xxiii) Ganesh Trading Co. v. Moji Ram reported in MANU/SC/0018/1978 : 2SCR614 .
xxiv) B.K.N. Pillai v. P. Pillai reported in MANU/SC/0775/1999 : AIR2000SC614 .
xxv) Syed Yakoob v. Radhakrishnan reported in MANU/SC/0184/1963 : 5SCR64 .
xxvi) Estralla Rubber v. Dass Estate (P) Ltd.
25. I find that the decisions which have been referred to by me in the foregoing paragraphs, were enough to decide the question raised before me and, therefore, I have not referred to in details these decision. In the circumstances, I pass the following order:
i) The writ petitions are allowed.
ii) The amendment application as filed by the defendant Nos. 3 and 4 is rejected. However, the defendant Nos. 3 and 4 are at liberty to file a separate application for amendment if they so choose and may try to explain under what circumstances such admissions were given.
iii) The order passed by the Trial Court on 02.01.2009 is also set aside and the application filed by the defendant No. 1 stands allowed.
iv) The substituted written statement shall not be deemed to be taken on record.
v) No order as to costs.