Andhra Pradesh High Court - Amravati

Valluri Srihari Pullaji vs Yarlagadda Janakiratnam on 21 April, 2023

Bench: K Manmadha Rao

                                   1


           THE HON'BLE DR.JUSTICE K. MANMADHA RAO

     CIVIL REVISION PETITIONS No.2726 & 2727 of 2019

COMMON ORDER:

      As the issue involved in both the civil revision petitions is

one and the same, these matters are taken up together for disposal

by this Common Order.


      2.     The petitioner herein is the defendant and the

respondent herein is the plaintiff. Originally the suit in O.S No.66

of 2012 was filed before the V Additional District Judge,

Rajamahendravaram (for short "the Court below") by the

plaintiff/respondent for declaration of her title in the plaint

schedule property and for delivery of possession. During pendency

of the above suit, the petitioner/defendant has filed the present

impugned I.A.Nos.639 and 640 of 2019, under Order XVIII Rule

17 r/w Section 151 of CPC to recall the petitioner for the purpose

of marking documents and adducing his evidence and also under

Order VI Rule 17 of CPC to amend the written statement by adding

paragraph No.5(a). On consideration of the material available on

record, the Court below has dismissed both the I.As vide separate

orders dated 17.07.2019. Aggrieved by the same, the present civil

revision petitions are came to be filed.

3. Heard Mr. T.V. S. Prabhakar Rao, learned counsel

appearing for the petitioner and Mr. P. Rajesh Babu, learned

counsel appearing for the respondents.

4. This Court vide order dated 22.10.2019 in CRP No.2727

of 2019 has granted interim direction as under:

".......there shall be stay of all further proceedings in OS No.66 of 2012 on the file of learned V Additional District Judge, Rajamahendravaram, East Godavari District, for a period of three weeks."

Later, the same was extended from time to time.

5. During hearing, learned counsel for the petitioner

contended that the order of the Court below is ex-facie and illegal.

He further submits that the petitioner has filed application for

amendment of written statement incorporating the para-5a with

regard to the age of the defendant to show that he was minor as on

4.5.1971 i.e., the date of execution of the settlement deed. He

further submits that the petitioner was minor at the time of

execution of the said document and to prove the same it is

necessary to amend the written statement and for which it is also

necessary to recall the witness to mark the document concerned.

Once the execution of the document is admitted, he cannot go

back is not correct. Therefore, learned counsel requests this Court

to pass appropriate orders.

6. Per contra, learned counsel for the respondents while

denying the contentions made by the petitioner, contended that,

the petitioner is not entitled to seek any amendment of pleadings

in view of bar imposed in the amended provisions of Code of Civil

Procedure. There are willful laches on the part of the petitioner.

therefore, prayed to dismiss the petition.

7. On a perusal of the entire material, this Court observed

that, the petitioner, who is defendant in the suit is none other

than the natural brother of the respondent/plaintiff. In the

written statement, the petitioner contended that, he is in

possession and enjoyment of the plaint schedule property

including the item No.2 covered by settlement deed dated

4.5.1971. It clearly establishes that the petitioner admitted the

execution of the settlement deed dated 4.5.1971. The parties have

let in evidence in the case and the matters are coming up for

arguments and the petitioner was also recalled by reopening his

evidence on 01.11.2017. Moreover, the petitioner never raised any

objection.

8. The learned counsel for the petitioner relied upon a

judgment of Hon'ble Supreme Court reported in Raghu Thilak D.

John Versus S. Rayappan and others1 , wherein the Apex Court

held :

6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plant which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for.

In another judgment reported in Suraj Prakash Bhasin v.

Smt. Raj Rani Bhasin and other2, wherein the Hon'ble Apex

Court held that:

8. Counsel also urged that there had been gross remissness, to say the least on the part of the plaintiff respondent in seeking amendment at a late stage and with a tricky touch. In such cases we must remember the power of the Court to resort to the universal panacea for the pathology of negligence, indifference, slipshodness and other delinquencies of litigants. The Court, while allowing amendments, will, in such cases, order heavy costs. In the present case, the amendment has been allowed, but the condition of payment of costs has been imposed. In these circumstances, we do not find our way to do anything else except to dismiss the appeal.

9. On a perusal of the above decisions, this Court observed

that the dominant purpose of allowing the amendment is to

(2001) 2 Supreme Court Cases 472

AIR 1981 Supreme Court 485

minimize the litigation. The Amendment held did not totally alter

nature of action and the discretion exercised by Court in allowing

amendment was not illegal.

10. Learned counsel for the respondent has also placed

reliance on the judgment of High Court of Delhi, reported in

International Bidg and Furnishing Company (Cal) Private

Limited vs Indian Oil Corporation3, wherein the Delhi High Court

held that :

8. To my mind the principle to determine as to whether by allowing the amendment, the period of limitation will be extended one has to interpret the scope of Order VIII Rule 6 of the Code of Civil Procedure. The said order makes it clear that if the defendant does not put his claim for set off on the first date of hearing in his written statement, he has to make a very strong case for condensation of delay and satisfy the Court that there was very valid ground for not doing so at the first opportunity. In the instant case I have to see that from the plain phraseology of Order VII Rule 6, the intention of the legislature is manifest that whosoever wishes to claim a set oft, he must do so when he appears for the first time before the Court in respect to the notice issued to him. The written statement was filed by the defendant in November, 1995. In November, 1995 when the defendant has taken the plea that so much amount has been spent on account of liquidator damages or other damages, at that stage a claim of set off could have been entertained. Having waited for more that four years by first filing documents in support of those averments on which the defendant chose to go on trial, thereafter filing an application for amendments stating the same facts, on the plea that same may be taken as counter claim, that plea was dismissed, thereafter filing the present application for amendment taking the plea of set off would only show that the amendment prayed for are to delay the suit and same are dilatory tactics. If the defendant had incurred some expenditure and had a claim against the plaintiff the same ought to have, been pleaded as such in the written statement in 1995, having not done so applicant cannot be allowed to take advantage of its own wrong. If the amendment is allowed by virtue of this application filed in the year 2000 that would amount to extending period of limitation for filing the suit. If the applicant was genuine about amendment in the written statement it ought to have filed at the first opportunity. From the plain reading of Order 8 Rule 6 CPC which is to the following effect, it would be clear that when a claim of set off is to be made, it is at the first hearing of the suit in which a claim of set off has to be maintained.

2001 LawSuit (Del) 837

"Order VIII Rule 6. Particulars of set-off to be given in written statement --(1) Where in a suit for the recovery of money the defendant claims to set-off against the .plaintiff. demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

In other judgment of Hon'ble Supreme Court reported in

Usha Balashaheb Swami and others versus Kiran Appaso Swami

and others4, wherein the Apex Court held that:

24. Coming back to the facts of the present case regarding amendment of the written statement, we find that the appellants had stated in para 8 of their original written statement "that plaintiff and defendant nos. 1 to 7 have got = share and defendant nos. 8 to 14 have got ½ share in all the family properties" and that the maternal aunts have also got share. By seeking incorporation of paras 8A and 8B and substitution of para 8 in the written statement, the appellants have maintained the admissions made by them in para 8 of the written statement but added a proviso or condition to the admission. Therefore, it was not a case of withdrawal of the admission by the appellants by making the application for the amendment of the written statement but in fact such admission was kept intact and only a proviso has been added. This, in our view, is permissible in law and the question of withdrawing the admission made in para 8 in its entirety in the facts as noted herein above, therefore, cannot arise at all.

25. 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 herein above 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

(2007) 5 Supreme Court Cases 602

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 herein above, 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.

26. Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and defendant no.2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of plaintiff and defendant nos. 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao. Therefore, it must be held that in view of our discussions made herein above, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement.

27. As noted herein earlier, Mr. Lalit while inviting us to reject the application for amendment of the written statement as was done by the High Court had placed strong reliance on the case of Modi Spinning (supra). 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 7th April, 1967 the plaintiff worked as their stockists-cum distributor. After three years the defendants by application under Order 6, Rule 17 of the Code sought amendment of written statement by substituting paras 25 to 26 with a new para in which they took the fresh plea that plaintiff was a mercantile agent cum purchaser, meaning thereby that they sought to go beyond their earlier admission that the plaintiff was a stockist-cum-distributor. In our opinion, the present case can be distinguished from that of Modi Spinning case. In that case, the pleadings that were being made by the plaintiff for amendment were not merely inconsistent but were resulting in causing grave and irretrievable prejudice to the plaintiff and displacing him completely. In paragraph 10 of this decision this Court also appreciated that inconsistent pleas can be made in the pleadings but the effect of substitution of paragraphs 25 and 26 in that decision was not making inconsistent and alternative pleadings but it was seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. In the facts of that decision this Court further held that if such amendments were allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. That apart in that decision the High Court also rejected the application for amendment of the written statement and agreed with the trial court. This decision in the case of Modi Spinning would not stand in the way of allowing the application for amendment of the written statement as the question of admission by the defendants made in the written statement, more particularly in

paragraph 8 of the written statement, was not at all withdrawn by the amendment but certain paragraphs were added inviting the plaintiff and defendants 1 to 7 to prove their legitimacy on the death of Appaso. That being the position, we do not think that Modi Spinning case will at all stand in the way of allowing the application for amendment of the written statement. It is true that in the case of Basavan Jaggu Dhobi this Court, in the facts of that case, held that it would not be open to a party to wriggle out of admission as admission is a material piece of which would be in favour of a person who would be entitled to take advantage of that admission. In the present case, admission made in Para 8 of the written statement was not at all withdrawn but only a rider and/or proviso has been added keeping the admission in tact. In that decision also this Court has appreciated the principle that even the admission can be explained and inconsistent pleas can be taken in the pleadings and thus amendment of the written statement can be allowed. In our opinion, as noted herein earlier, in the present case, the amendment would not displace the case of the plaintiff, as it would only help the court to decide whether the respondents are eligible to the said share in the property on proof of their legitimacy for which no irretrievable prejudice would be caused either to the plaintiff or to defendant nos. 2 to 8. Accordingly, we do not think that Basavan Jaggu Dhobi could be applied in the facts of this case, which is clearly distinguishable.

28. Again in the case of Akshaya Restaurant v. P. Anjanappa [1995 [Supp] (2) SCC 303] this Court held that even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even after taking a definite stand in the written statement. However, in that decision the amendment of the written statement was rejected mainly on the ground that respondents had entered into an agreement for development of the land for mutual benefit of the parties and thereby the trial court came to a conclusion that it was not open to the respondent to explain whether the agreement was one of sale or for mutual benefit since the agreement was sub silentio in that behalf. In that decision this Court further held that the High Court in the exercise of power under Section 115 of the Code of Civil Procedure committed no material irregularity in permitting amendment of the written statement. This Court while considering the question whether the admission can be withdrawn or not observed as follows:

"It is settled law that even the admission can be explained and even inconsistent 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 C.P.C. in permitting amendment of the written statement."

For the reasons aforesaid, we are unable to sustain the judgment of the High Court rejecting the application for amendment of written statement on the ground that if such amendment was allowed it would seriously prejudice the plaintiff. There is yet another aspect of the matter. The

trial court on consideration of the written statement as well as the application for amendment of the written statement, in its discretion allowed the application for amendment of the written statement. The High Court ought not to have reversed the said order of the trial court, rejecting the application for amendment of the written statement, when the trial court has exercised its discretion in allowing the amendment of written statement on consideration of the principles of law and the material on record.

11. On perusing the entire material available on record, the

law down in the citations referred to above and on considering the

submissions of both the counsels, this Court observed that, it is

settled law that even the admission can be explained and even

inconsistent pleas could be taken in the pleadings. Moreover, in

paragraph 5(a) of the written statement, a definite stand was taken

but subsequently in the application for amendment it was sought

to be modified as "the defendant was born on 21.10.1954 and he

was only aged 17 years by the date of settlement deed dated

4.5.1971 and therefore the very execution of the settlement deed

by this petitioner/defendant did not acquire any title to item No.2

of the plaint schedule property". Therefore, this Court feels the