HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- MISC. SINGLE No. - 5573 of 2010 Petitioner :- Smt. Shanti Devi W/O Sundarlal ( U/A 227 ) Respondent :- Additional District Judge, Court No.6,Gonda & Ors. Counsel for Petitioner :- Q.M. Haque Counsel for Respondent :- C.S.C.,Mohd. Kushif Rafi,R.M. Sharma Hon'ble Anil Kumar,J.
Matter is taken in revised cause list.
None appeared on behalf of the respondents.
Heard Sri Q.M. Haque, learned counsel for the petitioner and perused the record.
By means of present writ petition, petitioner has challenged the order dated 24.7.2010 ( Annexure no.1) passed by opposite party no.1/ Additional District Judge, Court no.6, Gonda and the order dated 4.1.2010 passed by opposite party no.2/ Civil Judge( Senior Division) by which petitioner's revision as well as application for amendment was dismissed.
Facts, in brief, of the present case are that on 31.5.1996 plaintiff/ respondents filed a Regular Suit no. 290 of 1996 ( Ram Sahai Purwar and others Vs. Piyara Devi and others ) for permanent injunction . On 28.4.1999 defendant/petitioner filed a written statement.
Thereafter defendant no.2/ Shanti Devi moved an application for amendment under order 6 Rule 17 read with 171 CPC , registered as paper no. 34 Ga, rejected by order dated 4.1.2010 passed by opposite party no.2/ Civil Judge ( Senior Division ), Gonda .
Aggrieved by the said fact, petitioner/ defendant/ Shanti Devi filed Revision No.29 of 2010 ( Smt. Shanti Devi Vs. Ram Sahai and others), dismissed by order dated 24.7.2010 passed by opposite party no.1/ Additional District Judge, Court no.6, Gonda.
Learned counsel for the petitioner while challenging the impugned order submits that the court below has erred in rejecting the application for amendment, as the same is nothing but amounts to clarification of certain pleadings which were pleaded on behalf of the defendant in written statement . The said plea has been further pressed by Sri Q.M. Haque, learned counsel for petitioner by raising arguments to the effect that the amendment as sought is clarificatory in nature so the same may be allowed.
In support of his arguments , he has placed reliance on the judgments given by Hon'ble the Apex Court in the case of Baldev Singh and others etc. Vs. Manohar Singh and another etc. , 2006(3) ARC 253 and by this Court in the case of Dharam Chand Pandey Vs. District Judge, Faizabad and others, 2010 (28) LCD 532. Accordingly, it is submitted by Sri Q.M. Haque, learned counsel for the petitioner that impugned order being contrary to law, liable to be set aside.
After hearing learned counsel for the petitioner and going through the record, the admitted position which emerge out in the present case is to the effect that a suit for permanent for injunction has been filed by plaintiff/ respondents on 31.5.1996 and thereafter on 28.4.1999 written statement has been filed by the defendant.
On 13.8.1999 on behalf of defendant no.2 / Smt. Shanti Devi an application for amendment (paper no. 34 Ga) under order 6 Rule 17 read with 171 CPC has been moved, the same was rejected by order dated 4.1.2010 passed by opposite party no.2/Civil Judge(Senior Division) Gonda with the following findings :-
"उसके द्वारा प्रस्तुत ९८ क जबाबदाबा का स्वरुप बदल जा रहा है और इससे बाद की प्रकृति भी बदल रही है जिससे वादी को बचाब में जो लाभ प्राप्त हो रहा है, यदि उक्त संशोधन प्रार्थना पत्र स्वीकार कर लिया जाता है तो वादी की क्षतिपूर्ति हर्जे से नहीं कराई जा सकती है । प्रार्थिनी शांति देवी अपनी स्वीकृतियां से पीछे हट रही है व संशोधन प्रार्थना पत्र स्वीकार किये जाने योग्य नहीं पाया जा रहा है |"
And revision filed by the petitioner, was dismissed by order dated 24.7.2010 passed by opposite party no.1/ Additional District Judge Court no.6, Gonda, the relevant portion is quoted as under:-
"अतः निःसंदेह प्रस्तावित संशोधन से जवाब देने का स्वरुप बदल जाता है । अगर दरखास्त तरमीम का/३४१ स्वीकार की गयी, तो अत्याधिक पुराने मुकदमें की पूरी नवैयत ही बदल जाएगी । पुनः नए सिरे से दोनों पक्ष अपने लिए साक्ष्य और बचाव के मुददे तलाश करना प्रारम्भ कर देंगे । ऐसा संशोधन अनुचित है । अतः अधीनस्थ न्यायालय ने प्रश्नगत आदेश विधि सम्मत पारित किया है । प्रश्नगत आदेश अधीनस्थ न्यायालय के क्षेत्राधिकार के तहत है । इसमें त्रुटि नहीं है । हस्तक्षेप करने की आवश्यकता नहीं है । अतः प्रस्तुत निगरानी में मै बल नहीं पता हूँ । निगरानी निरस्त होने योग्य है ।"
On the point in issue Hon'ble the Apex Court recently in the case of Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and others, (2015) 10 Supreme Court Cases, 203 has held as under :-
"The above decision was followed in Sushil Kumar Jain v. Manoj Kumar and another,(2009) 14 SCC 38. The case pertained to eviction proceedings. The original stand taken by the tenant was that there were different tenancies. However, an application for amendment was moved stating that there are three different portions under one tenancy and not different portions under different tenancies. The Court, at Paragraph-12, held as follows:
"12. In our view, having considered the averments made in the application for amendment of the written statement, it cannot be said that in fact neither any admission was made by the appellant in his original written statement nor had the appellant sought to withdraw such admission made by him in his written statement. That apart, after a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence."
The learned Counsel appearing for the appellant mainly referred to three Judgments of this Court. In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co.(1976) 4 SCC 320, it was held as follows at Paragraph-10:
"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court."
In Gautam Sarup v. Leela Jetly and others (2008) 7 SCC 85, after considering Panchdeo Narain Srivastava 1984 Supp. SCC 594 and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. (supra) and several other decisions dealing with the amendment on withdrawal of admissions in the pleadings, it was held at Paragraph-28 as follows:
"28. What, therefore, emerges from the discussions made hereinbefore 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."
On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others (2009) 10SCC84, after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows:
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) 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.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendant Nos. 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted.
Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others, (1974) 1SCC 242. To quote Paragraph-27:
"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled.
However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that:
"11. .... Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 when the defendant No. 5 was only 2 years and the defendant No. 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. The defendant No.5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now members of the joint family. In the marriage of the two sisters of the defendant no.5 Kusum and Bina (now after marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations."
In the counter affidavit filed before this Court, Defendant Nos. 5 and 12 have stated as follows:
"The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad used in the arbitration proceedings where she was not a party admitting relinquishment of the share of her husband and thereafter admitting such letter in the original pleading is not what the answering respondents want to resile and/or withdraw from but by the present amendment had only ought to explain the circumstances in which such letter has been written."
In the instant matter amendment which sought by the petitioner in his written statement is nothing but amount to withdraw in her statement / admission which is earlier made in his written statement so by way of amendment such admission of the defendants cannot be allowed to be withdrawn, as such withdrawal would amount to total displacing the case of the plaintiff, which would cause him irretrievable prejudice , so the same cannot be allowed to be withdrawn ( See: Smt Buddhan Devi and others Vs. Ivth Additional District Judge, Jaunpur and others 2007 (25 LCD 185).
For the foregoing reasons, I do not find any illegality or infirmity in the order dated 24.7.2010 ( Annexure no.1 ) passed by opposite party no.1/ Additional District Judge, Court no.6, Gonda and the order dated 4.1.2010 passed by opposite party no.2/ Civil Judge( Senior Division), Gonda. The writ petition lacks merit and is dismissed.
Order dated: 23.12.2015 dk/