Calcutta High Court (Appellete Side)
Debobrata Mondal & Ors vs Pijush Banerjee And Ors on 6 October, 2023
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:-
The Hon'ble Justice Biswaroop Chowdhury
C.O. 3072 of 2018
With
CAN 1 of 2023
Debobrata Mondal & Ors.
Vs.
Pijush Banerjee and Ors.
For the petitioners : Mr. Supratim Laha
Mr. Sumanta Biswas
Mr. Bikash Shaw
For the opposite party : Mr. Amal Kumar Mukherjee
Ms. Tithi Majumdar
Ms. Anindita Banejee
Mr. Sankrito Roy
Mr. Washim Akhtar Dafadar
Mr. Palash Kanti Chakraborty
Last Heard on : 08.09.2023
Delivered on : 06.10.2023
Biswaroop Chowdhury, J:
The petitioners before this Court are defendants in a suit for
declaration of title permanent injunction and cancellation of sale
deed and are aggrieved by the Order dated 31.07.2018 passed by
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Learned 2nd Civil Judge Senior Division at Baruipur, South 24
Parganas being Title Suit No. 124 of 2017.
The case of the petitioners/defendants may be summed up thus:
The plaintiffs/opposite parties filed a suit for declaration of title,
permanent injunction and cancellation of sale deed against the
defendants/petitioners before the Learned 2nd Civil Judge Senior
Division at Baruipur, South 24 Parganas being Title Suit No.124 of
2017 praying inter alia for the following reliefs:-
a) On declaration of the plaintiffs' absolute right, title
interest in respect of the suit property decree for
permanent injunction restraining the defendants from
disturbing with the plaintiff's peaceful possession in
respect of the same in any manner whatsoever.
b) Decree for cancellation of the sale deed dated 28.03.2012
being Deed No. 2492 of 2012.
c) Cost.
d) Such other relief/reliefs to which the plaintiffs are
entitled.
The petitioners/Defendants filed written statement to the
plant. The plaintiff in connection with the suit filed an application
under Order XXXIX Rule 1 and 2 read with Section 151 of the Code
of Civil Procedure praying for an Order of Temporary injunction
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restraining the defendants from dispossessing the plaintiffs from
the suit property and from changing nature and character of the
suit property and also restraining the defendants from disturbing
the plaintiff's possession of the suit property till disposal of the
suit. The petitioners duly filed their written objection against the
application under Order XXXIX, Rules 1 and 2 read with Section
151 of the Code of Civil Procedure. By an Order dated 2nd
December, 2014, the Learned Court below was inter alia, pleased to
direct the parties to the suit to maintain status quo of the suit
property with respect of the nature, character and possession of
the suit property till 16.01.2015. Subsequently, the said ad-interim
Order of status quo was extended from time to time and ultimately
on 6th January, 2016 the Learned Court below was inter alia,
pleased to direct the parties of the suit to maintain status quo in
respect of nature and character and possession of suit property till
disposal of the suit. The defendants/petitioners were busy in
contesting the injunction application and they could not file their
written statement in time hence on 29.04.2015, the Learned Court
below was pleased to pass an Order to the effect that the suit will
proceed ex-parte against the defendants. Subsequently, on
25.05.2016, the defendants/petitioners filed an application praying
for vacating the Order for ex-parte proceedings of the suit and the
same was allowed with costs. On 21.08.2015 the petitioners/
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defendants filed written statement in the suit denying the material
allegations made in the plaint. The petitioners/defendants
thereafter made application for amendment of the written
statement before the Learned Court below to which the
plaintiffs/opposite parties filed objection against such proposed
amendment to the written statement filed by the
defendants/petitioners.
By Order dated 31.07.2018 passed by Learned 2nd Civil
Judge Senior Division at Baruipur, South 24 Parganas in Title Suit
No. 124 of 2017 the application for amendment filed by
petitioners/defendants was rejected.
The petitioners being aggrieved by the Order of Learned Trial
Judge in rejecting the prayer for amendment of written statement
has came up with the instant application under Article 227 of the
Constitution of India. It is the contention of the petitioners that the
Learned Court below has erred on facts and/or in law by holding
that the plaintiffs' case has been admitted by the defendants in
paragraph 8 of the written statement. It is further contended by the
petitioner that the Learned Court below has erred in holding that
by way of amendment, the petitioners are trying to deny their
admission which has already been admitted in written statement.
It is also contended that the Learned Court below has failed to
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appreciate that in their written statement all along the defendants
have denied and disputed all the claims made by the plaintiffs and
there was no admission on the part of the defendants/petitioners.
Heard Learned Advocate for the petitioner and learned
Advocate for the opposite parties perused the petition filed and
materials on record. Learned Advocate for the petitioners submits
that the learned Judge failed to appreciate that nowhere in the
written statement the defendant/petitioner admitted the claim of
the plaintiff. Learned Advocate further submits that the written
statement if read as a whole will not go to reflect that the defendant
has admitted that claim of the plaintiff. Learned Advocate for the
petitioner relies upon the following decision of the Hon'ble Supreme
Court.
Baldev Singh & Other.
Vs.
Monahar Singh & Anr.
Reported in (2006) 6 SCC 498
Learned Advocate for the opposite parties/plaintiffs submits
that the defendants/petitioners by amendment have tried to
introduce a new case. Learned Advocate further submits that
conduct of the parties should be considered in this case. Learned
Advocate also submits that the Learned Trial Court was justified in
rejecting the prayer for amendment.
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Before considering the merits of the case and validity of the
order passed by Learned Court below first and foremost it is
necessary to consider the relevant provisions about amendment as
provided in Order VI Rule 17 of the Code of Civil Procedure.
Order VI Rule 17 of the Code of Civil Procedure provides as
follows:-
"The Court may at any stage of the proceedings allow either
party to alter or amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall be made as
may be necessary for the purpose of determining the real questions
in controversy between the parties."
Provided that no application for amendment shall be allowed
after the trial has commenced unless the Court comes to the
conclusion that in spite of due diligence the party could not have
raised the matter before the commencement of trial."
In the instant case it is an admitted position that trial did
not commence when the prayer for amendment was made.
However as a plea is raised by the opposite party that by such
amendment the petitioners/defendants have been trying to deny
their admission which is already made in para-8 of the written
statement, it is necessary to consider para-8 as well as the
amendment proposed to be made and some judicial decisions.
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Para-8 of the written statement provides as follows:-
"8. With regard to the statements made in paragraphs 3 of
the plaint your petitioner states that the statements made therein
are not correct except by the sale deed dated 02.03.1959 said
Pacha Halder and Anukul Kayal transferred the suit property in
favour of Anita Devi who was the benamdar of Suprova Banerjee.
Your petitioner states that at the time of purchase of the suit
property, the defendant collected some information along with
documents from Anita Devi and the legal heirs i.e. Vendor herein.
It will appear from the certified copy of Judgment that Smt.
Suprova Banerjee i.e. the mother of the plaintiff Nos. 1 to 5
previously had filed a suit against the said Madan Chandra Halder
and Ratan Chandra Halder both are the legal heirs of the original
owner Pacha Halder seeking relief for declaration of Title and
permanent injunction and other reliefs. That the suit being Title
Suit No.352 of 1992 dismissed on contest on 30.11.1993 before
the 2nd Munsiff at Baruipur and thereafter Smt. Suprova Banerjee
i.e. mother of the plaintiff Nos. 1 to 5 also preferred appeal being
aggrieved by and dissatisfied with the Judgment and decree passed
on 30.11.1993 before the Hon'ble High Court at Calcutta being
S.A. No.107 of 1999 and the said appeal also dismissed. Hon'ble
High Court hold the learned Lower Court had decided correctly
that the suit is not maintainable and the suit is hit by Section 4 (1)
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of Benami Transaction (Prohibition of right to recover property) Act,
1988. So it is clear that the Suprova Banerjee i.e. the mother of
the plaintiff Nos. 1 to 5 was not an absolute owner of the suit
property and the plaintiffs have no right title interest over the suit
property to file the instant suit."
The proposed amendment sought to be made by the
petitioners/defendants are as follows:-
Proposed Amendment in the Written Statement
"1. Paragraph No. 8 of the written statement of the defendant
nos. 1, 2 and 3 shall be fully deleted and the same shall be
replaced with the following paragraph and sub-paragraphs, which
as a whole shall constitute Paragraph 8:-"
"With reference to the statements contained in paragraph 3
of the plaint, the defendants categorically deny and dispute each
and every allegation made therein, save and except the fact that by
a registered Deed of Conveyance dated 2nd March, 1959, the suit
property was transferred by one Pacha Halder (since deceased) in
favour of one Smt. Anita Devi (since deceased). It is denied and
disputed that Anita Devi (since deceased) was the benamdar of
Smt. Suprova Banerjee (since deceased), as alleged or at all. It is
denied and disputed that the consideration money for the said sale
deed was paid by Smt. Suprova Banerjee (since deceased), as
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alleged or at all. It is denied and disputed that Smt. Suprova
Banerjee (since deceased) took the delivery of possession of the suit
property from the vendor of the said deed, as alleged or at all. It is
denied and disputed that Smt. Anita Devi (since deceased) was the
benamdar of the said suit property and Smt. Suprova Banerjee
(since deceased) was the real owner, as alleged or at all. It is
denied and disputed that since such purchase Smt. Suprova
Banerjee (since deceased) was in exclusive possession of the suit
property doing various acts of possession including payment of
rent and doing the agricultural job, as alleged or at all. It is denied
and disputed that subsequently, by registered release deed dated
10th February, 1976, executed by Smt. Anita Devi
(since deceased) in favour of Smt. Suprova Banerjee (since
deceased), Smt. Anita Devi (since deceased) admitted that Smt.
Anita Devi (since deceased) was the benamdar of the suit property
or the consideration money for the suit property was paid by Smt.
Suprova Banerjee (since deceased) as alleged or at all. It is denied
and disputed that Smt. Anita Devi (since deceased) admitted that
Smt. Suprova Banerjee (since deceased) has been all along in
possession of the suit property or Smt. Anita Devi (since deceased)
was never in possession of the suit property, as alleged or at all. It
is denied and disputed that Smt. Anita Devi (since deceased)
admitted that Smt. Suprova Banerjee (since deceased) was the
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absolute owner of the suit property, as alleged or at all. In this
regard the following facts are submitted by the defendants, which
are very much germane for proper adjudication of the instant suit:-
a) The present suit is undervalued as the plaintiffs have
declared the suit value at Rs. 31,000/- only, whereas the
Consideration value of the registered sale deed, made in
favour of the defendants is Rs. 20,00,000/- only. Since, the
plaintiffs have prayed for cancellation of the said deed,
therefore the plaintiffs ought to have valued the suit at Rs.
20,00,000/- only and accordingly should have paid Court
fees and has erred in not doing so.
b) That the plaintiffs are guilty of suppression of material facts
and therefore they are not entitled to get any relief from this
learned court.
c) The instant suit is also barred by the Principle of "res
judicata" as all the above claims of the plaintiffs have
already been decided on earlier occasion by Learned 2nd
Court of Civil Judge (Junior Division), Baruipur in an
earlier proceeding.
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d) On earlier occasion, Smt. Suprova Banerjee (since deceased)
filed a suit bearing Title Suit No. 352 of 1992 before the
Learned 2nd Court of Civil Judge (Junior Division), Baruipur
against one Sri Madan Chandra Halder and Sri Ratan
Chandra Halder, both legal heirs of Sri Pacha Halder (since
deceased), thereby praying for declaration of Title over the
suit property and also for permanent injunction and other
related reliefs.
e) That after considering necessary pleadings and documents
submitted by the contesting parties and after evaluation the
evidences adduced and arguments put forward by the
contesting parties, Learned 2nd Court of Civil Judge (Junior
Division), Baruipur was, inter alia, pleased to dismiss the
suit by the Judgment and order dated 30.11.1993, thereby
negating the claims made by the said Smt. Suprova
Banerjee (since deceased).
f) Being aggrieved by the said Judgment and order dated
30.11.1993, passed by the Learned 2nd Court of Civil Judge
(Junior Division), Baruipur, Smt. Suprova Banerjee (since
deceased) filed First Appeal before The Learned Assistant
District Judge, Baruipur, being Title Appeal No.122 of 1993.
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g) However, The Learned Assistant District Judge, Baruipur,
by his Judgment and Decree dated 01.10.1994, was inter
alia, pleased to dismiss such appeal preferred by Smt.
Suprova Banerjee (since deceased).
h) Therefore, Smt. Suprova Banerjee (since deceased) has
preferred a Second Appeal before The Hon'ble High Court at
Calcutta, being S.A.No. 107 of 1999, which is still pending
for final adjudication.
i) That both Learned 2nd Court of Civil Judge (Junior
Division), Baruipur, being the Trial Court as well as The
Learned Assistant District Judge, Baruipur, being the First
Appellate Court, has unanimously held and decided that
the suit is not maintainable and the suit is hit by section
4(1) of Benami Transaction (Prohibition of right to recover
property) Act, 1988. So it is clear that Suprova Banerjee i.e.
the mother of the plaintiff nos. 1 to 5 was not an absolute
owner of the suit property and the plaintiffs have no right,
title interest over the suit property to file the instant suit.
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j) The plaintiff's suit is not maintainable as per the
prohibition of Benami property Transaction Act, 1988. The
plaintiff's suit is not maintainable under the said Act. The
Civil court has no jurisdiction to entertain this instant suit
as the suit is not maintainable. The plaintiff No. 1 to 5 are
claiming their title through alleged real owner Suprova
Banerjee and defendant No. 5 to 9 claiming through Gita
Rani Das. The plaintiff No. 1 to 9 have not acquired any
right from the said Suprova Banerjee. The alleged Nadabi
Deed neither created any right in favour of Suprova
Banerjee non it extinguished any right to Anita Devi
because the statute requires a Deed for conveying a title.
The said Suprova Banerjee was not in possession of the suit
property Anita Devi was in possession of the said land since
her purchase as a purchaser. That Anita Devi has
enforceable title in the said deed by virtue of her purchase.
The said deed of relinquish does not create any title in
favour of predecessor of the plaintiff. The plaintiffs case of
purchase by Suprova Banerjee in the Benami of Anita Devi
has got no legs to stand. No suit can be enforceable by
claiming a Benami prior to amendment of Benami
Transaction Prohibition Act, 1988 on 01.11.2016 and after
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that the claim also is not maintainable. Previously the said
suit also failed due to prohibition by the Act."
Now upon perusal of sub-paragraph a, b, c, d, e, f, g, h, i and
j of paragraph 1 of the amendment petition it will appear that those
paragraphs give details necessary for adjudication of the case. But
upon considering original para-8 of written statement along with
proposed amendment of para-8 there will appear inconsistency to
some extent.
In original para-8, first five lines are as follows:-
"With regard to the statements made in paragraph 3 of the
plaint, your petitioner states that the statements made therein are
not correct except by the sale deed dated 02.03.1959 said Pacha
Halder and Ankul Kayal transferred the suit property in favour of
Anita Devi who was the benamdar of Suprova Banerjee."
The first five lines of the proposed written statement
paragraph-8 are as follows:-
"With reference to the statements contained in paragraph 3
of the plaint, the defendants categorically deny and dispute each
and every allegation made therein, save and except the fact that by
a registered Deed of conveyance dated 2nd March, 1959, the suit
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property was transferred by one Pacha Halder (since deceased) in
favour of one Smt. Anita Devi (since deceased)."
Thus in the first five lines of proposed Amendment of
paragraph 5 of written statement sale by Pacha Halder to Smt.
Anita Devi is admitted and the earlier statement 'who was
benamder of Smt. Suprova Banerjee' is sought to be deleted. In a
separate sentence the defendants/petitioners have sought to deny
that Anita Devi (since deceased) was the benamder of Smt. Suprova
Banerjee (since deceased).
Now the point for consideration is whether
petitioners/defendants should be permitted to withdraw the
statement made in paragraph 8 of the original written statement
contending that Smt. Anita Devi was benamder of Suprova
Banerjee and further deny the same by amendment.
In order to decide the prayer of the defendants/ petitioners
to delete some statements which according to the plaintiff is
admission it is necessary to consider some judicial decisions. In
the case of Baldev Singh and others vs. Manohar Singh and
another reported in (2006) 6 SCC P-498, the Hon'ble Supreme
Court observed as follows:
"14. As noted herein earlier, the case set up by the plaintiff-
respondent 1 was that his parents had no money to purchase the suit
property and it was the plaintiff-respondent 1 who paid the consideration
money. In the written statement, this fact was denied and further it was
asserted in the written statement that the suit property was in fact
purchased by their parents and they had sufficient income of their own.
In the application for amendment of written statement it was stated that
the plaintiff-respondent 1 did not have any income to pay the
consideration money of the suit property and in fact the parents of the
plaintiff-respondent 1 had sufficient income to pay the sale price. It was
only pointed out in the application for amendment that after the death of
their parents, the suit property was mutated in the joint names of the
plaintiff-respondent 1 and the defendants in equal shares. Therefore, the
question whether certain admissions made in the written statement were
sought to be withdrawn is concerned, we find, as noted herein earlier,
there was no admission in the written statement from which it could be
said that by filing an application for amendment of the written statement,
the appellants had sought to withdraw such admission. It is true that in
the original written statement, a statement has been made that it is the
defendant-appellant 1 who is the owner and is in continuous possession
of the suit property, but in our view, the powers of the Court are wide
enough to permit amendment of the written statement by incorporating
an alternative plea of ownership in the application for amendment of the
written statement. That apart, in our view, the facts stated in the
application for amendment were in fact an elaboration of the defence
case. Accordingly, we are of the view that the High Court as well as the
Trial Court had erred in rejecting the application for amendment of the
written statement on the ground that in the event such amendment was
allowed, it would take away some admissions made by the defendants-
appellants in their written statement. That apart, in Estralla Rubber vs.
Dass Estate (P) Ltd. this Court held that even if there were some
admissions in the evidence as well as in the written statement, it was still
open to the parties to explain the same by way of filing an application for
amendment of the written statement. That apart, mere delay of three
years in filing the application for amendment of the written statement
could not be a ground for rejection of the same when no serious prejudice
is shown to have been caused to the plaintiff-respondent 1 so as to take
away any accrued right.
15. Let us now take up the last ground on which the
application for amendment of the written statement was rejected by
the High Court as well as the Trial Court. The rejection was made
on the ground that inconsistent plea cannot be allowed to be
taken. We are unable to appreciate the ground of rejection made by
the High Court as well as the Trial Court. After going through the
pleadings and also the statements made in the application for
amendment of the written statement, we fail to understand how
inconsistent plea could be said to have been taken by the
appellants in their application for amendment of the written
statement, excepting the plea taken by the appellants in the
application for amendment of written statement regarding the joint
ownership of the suit property. Accordingly, on facts, we are not
satisfied that the application for amendment of the written
statement could be rejected also on this ground. That apart, it is
now well settled that an amendment of a plaint and amendment of
a written statement are not necessarily governed by exactly the
same principle. It is true that some general principles are certainly
common to both, but the rules that the plaintiff cannot be allowed
to amend his pleadings so as to alter materially or substitute his
cause of action or the nature of his claim has necessarily no
counterpart in the law relating to amendment of the written
statement. Adding a new ground of defence or substituting or
altering a defence does not raise the same problem as adding,
altering or substituting a new cause of action. Accordingly, in the
case of amendment of written statement, the courts are inclined to
be more liberal in allowing amendment of the written statement
than of plaint and question of prejudice is less likely to operate
with same rigour in the former than in the latter case.
16. This being the position, we are therefore of the view that
inconsistent pleas can be raised by defendants in the written
statement although the same may not be permissible in the case of
plaint. In Modi Spg. and Wvg. Mills Co.Ltd. V. Ladha Ram & Co.
this principle has been enunciated by this Court in which it has
been clearly laid down that inconsistent or alternative pleas can be
made in the written statement. Accordingly, the High Court and
the Trial Court had gone wrong in holding that defendant-
appellants are not allowed to take inconsistent pleas in their
defence."
In the case of Mathia vs. Premlal reported in 1992 22 .....
civil cases 424 (HP), the Hon'ble Himachal Pradesh High Court
observed that introduction of a totally different case by an
amendment is not permissible. When the defendant by a joint
written statement admits a particular defendant to be a tenant by
way of amendment, they cannot deny tenancy in favour of that
particular defendant. When the proposed amendment has the
effect of withdrawal of an admission in the original pleading the
amendment is barred.
In the case of Ma Shwe Mya vs. Maung Mo Hnaung reported
in AIR 1922 P.C. 249 it was observed by Privy Council as follows:
"All rules of Court are nothing but provisions intended to
secure the proper administration of justice and it is therefore
essential that they should be made to serve and be subordinate to
that purpose, so that full powers of amendment must be enjoyed
and should always be liberally exercised, but nonetheless no power
has yet been given to enable one distinct cause of action to be
substituted for another, nor to change, by means of amendment
the subject matter of the suit."
In the case of Estralla Rubber vs. Dass Estate (P) Ltd.
reported in 3(2001) 8 SCC P. 97 the Hon'ble Supreme court
observed as follows:
"8. It is fairly settled in law that the amendment of pleadings
under Order 6, Rule 17 is to be allowed if such an amendment is
required for proper and effective adjudication of controversy
between the parties and to avoid multiplicity of judicial
proceedings, subject to certain conditions such as allowing
amendment should not result in injustice to the other side;
normally a clear admission made conferring certain right on a
plaintiff is not allowed to be withdrawn by way of amendment by a
defendant resulting in prejudice to such a right of plaintiff,
depending on facts and circumstances of a given case. In certain
situations a time barred claim cannot be allowed to be raised by
proposing an amendment to take away the valuable accrued right
of a party. However, mere delay in making an amendment
application itself is not enough to refuse amendment, as the delay
can be compensated in terms of money. Amendment is to be
allowed when it does not cause serious prejudice to the opposite
side.
In the case of A.K. Gupta and Sons Ltd. Vs. Damodar Valley
Corporation reported in AIR 1967 SC 96 the Hon'ble Supreme
Court observed as follows:
"The general rule, no doubt, is that a party is not allowed by
amendment to set up a new case or a new cause of action
particularly when a suit on new case or cause of action is barred.
Weldon v. Neal "But it is also well recognized that where the
amendment does not constitute the addition of a new cause of
action or raise a different case, but amounts to no more than a
different or additional approach to the same facts, the amendment
will be allowed even after the expiry of the statutory period of
limitation: See Charan Das v. Amir Khan and L.J. Leach and Co.
Ltd. V. Jardine Skinner and Co.
This Court in the same judgment further observed that the
principles applicable to the amendment of the plaint are equally
applicable to the amendment of the written statement and that the
courts are more generous in allowing amendment of the written
statement as the question of prejudice is less likely to operate in
that event. It is further stated that the defendant has a right to
take alternative plea in defence which, however, is subject to an
exception that by the proposed amendment the other side should
not be subjected to serious injustice and that any admission made
in favour of the plaintiff conferring right on him is not withdrawn."
Upon perusal of Para 3 of the plaint and para 8 of the written
statement it will appear that the defendants in their written
statement denied the allegations made in para 3 of the plaint other
than the words 'except by the sale deed dated 02.03.1959 said
Pacha Holder and Anukul Koyal transferred the suit property in
favour of Anita Devi who was the benamder of Suprova Banerjee'
and at the same time the said defendant stated at the end of Para 8
that it is clear that Suprova Banerjee i.e. the mother of the plaintiff
Nos. 1 to 5 was not an absolute owner of the suit property and the
plaintiffs have no right, title, interest over the suit property to file
the instant suit. Thus from the reading of the statement made in
paragraph 8 of the written statement filed it will appear that the
defendants did not specifically admit that Anita Devi was
benamder of Suprava Banerjee as the defendants have denied the
ownership of Suprova Banerjee and the plaintiffs. Thus, the entire
dispute on the point of law which is required to be decided now is
whether the defendant should be permitted to remove the words
'who was a benamder of Suprova Banerjee' from the sentence 'with
reference to the statements contained in paragraph 3 of the plaint
the defendants categorically denied and disputed each and every
allegation made therein, save and except the fact that by a
registered Deed of Conveyance dated 2nd March, 1959 the suit
property was transferred by one Pacha Halder (since deceased) in
favour of one Smt. Anita Devi (since deceased), who was benamder
of Smt. Suprova Banerjee', and further permitted to deny Anita
Devi as Benamder. In the application for amendment of written
statement the defendants have contended that at the time of
drafting and filing of written statement the defendant Nos. 1, 2 and
3 could not supply some important documents to their Ld.
Advocate and they could not give proper instruction to their Ld.
Advocate in respect of certain facts which are very much relevant
for the proper adjudication of the matter in dispute and also could
not detect those mistake or omission on earlier occasion. It is
further contended by the defendant No. 1, 2 and 3 that only on
30.08.2017 at the time of consultation with their Ld. Advocate they
detected those mistakes which was not detected prior to that. It is
also contended that the said defect could not be determined on
earlier occasion in spite of diligent efforts made by the defendant
Nos. 1, 2 and 3.
Although it is held in different judicial pronouncements that
admission once made cannot be permitted to be withdrawn but
that does not mean that admission once made cannot be permitted
to be withdrawn at all under any circumstance. It is the power and
duty of the Court to ascertain as to whether the admission is made
spontaneously or by inadvertence secondly whether there was due
diligence on the part of the party in detecting the error regarding
admission and making bona- fide application for amendment,
thirdly whether the opposite party against whom amendment is
sought will suffer irreparable loss and injury without a just and
reasonable cause. As admission is not conclusive proof and Court
has discretion to require any fact so admitted to be proved
otherwise than by such admission a prayer for withdrawal of
admission made due to inadvertence and the party seeking
amendment is not acting mala-fide, the Court may exercise
discretion to allow such amendment.
Order 8. Rule 5(1) provides that every allegation of fact in the
plaint if not denied specifically or by necessary implication, or
stated to be not admitted in the pleadings of the defendant, shall
be taken to be admitted except as against a person under a
disability, provided that the Court may in its discretion require any
such fact to be proved otherwise than by such admission.
Sub Rule-2 provides where the defendant has not filed a
pleading, it shall be lawful for the Court to pronounce judgment on
the basis of the facts contained in the plaint, except as against a
person under a disability but the Court, may in its discretion
require any such fact to be proved.
Thus upon plain reading of the provision contained in sub-
Rule 1 and 2 of Rule 5 of Order-8 of the Code of Civil Procedure
which confers upon Court discretionary power to require an
admitted fact to be proved gives a ground to infer that Courts have
power to permit amendment which has effect of withdrawing
admission provided that such admission is made due to
inadvertence and not spontaneous or by necessary implication.
While considering such prayer the Courts should see that the party
seeking amendment has acted with due diligence and is not acting
mala-fide to delay the proceedings. In the instant matter the main
dispute lies as to whether the defendants/ petitioners should be
permitted to withdraw the pleadings that Anita Devi was benamdar
of Suprova Banerjee. In order to decide this dispute first of all it is
necessary to peruse the allegation contained in paragraph 3 of the
plaint, the plaintiff has alleged that Anita Devi was the benamdar
of Suprova Banerjee and thus there is no allegation of benamder
against any of the defendants. When defendant No. 1, 2 and 3
purchased suit property the defendants contended that they
obtained some information along with documents from Anita Devi
and the legal heirs i.e. vendor herein. Thus when the suit property
is not transferred directly to the defendants Nos. 1, 2 and 3 by
Pacha Halder but to Anita Devi who is alleged by the plaintiffs to be
benamder of Suprova Banerjee and the defendants obtained the
suit property by purchase from Anita Devi it cannot be claimed
that the statement Anita Devi being benamder was true to
knowledge of the defendants when in the affidavit of written
statement the said defendants did not specifically verify the
statements made in paragraph 8 as true to knowledge rather the
verification is general in nature stating entire written statement
true to knowledge and belief. Thus if at all the defendants/
petitioners have contended that Anita Devi was the benamder of
Suprova Banerjee it may be on the basis of information. A party to
the proceedings have duty to speak the truth before Court of Law.
Thus, whatever a party has within his knowledge about the facts of
the case he has duty to disclose that. However, with regard to some
information collected which is not supported by documents a party
has the right to withdraw statement based on information which
subsequent to the filing of the pleadings he does not believe to be
true. Thus, when the pleadings is made by inadvertence the party
by whom such pleadings is made may seek leave to withdraw the
same. It is the basic right of a person to defend an action brought
against him in a Court of Law or before any authority. Thus all
persons should be given reasonable opportunity to defend their
case. Hence, if a mistake in pleadings is committed due to
inadvertence opportunity should be given to rectify the same.
Whether an admission is made spontaneously or due to
inadvertence has to be decided firstly from the nature of pleadings
made by the party upon taking the entire pleadings, secondly the
grounds taken in the application for amendment and thirdly
whether such admission is verified as true to knowledge or true to
information and belief.
In the instant matter upon considering the nature of
pleadings made by the defendants/ petitioners in the written
statement the nature of dispute between the parties, and the
application for amendment this Court is of the view that the
pleadings 'who was benamder' is made due to inadvertence and the
defendants/ petitioners should be permitted to amend the
pleadings in the interest of justice as such amendment will not
cause serious prejudice to the plaintiffs. However, with regard to
other contentions mentioned in the schedule of proposed
amendment those should also be allowed, as those are necessary
to determine the real question in controversy between the parties.
In the facts and circumstances this Revisional Application
stands allowed. Order dated 31.07.2018 passed by Learned 2nd
Civil Judge (Senior Division) at Baruipur, South 24 Parganas being
Title Suit No. 124 of 2017 is set aside. Petitioners/ defendants No.
1, 2 and 3 are permitted to carry out the proposed amendment
within 2 weeks after puja vacation subject to payment of costs of
Rs. 3,000/- (Rupees three thousand) to the plaintiffs. It is however,
made clear that this Court has not gone into the merits of the case
and all points are left open before Trial Court.
This application stands disposed.
As the suit is pending for about six years Learned Trial
Judge is requested to dispose the suit expeditiously.
[Biswaroop Chowdhury, J]
