K.G. Mal And Anr. vs Sham Bihari Mal
1994 Latest Caselaw 53 Del

JUDGMENT

Usha Mehra, J.

(1) Mr. K.G.Mal and Anr., by this Revision petition, have assailed the order of learned Additional District Judge, Delhi, dated 3.10.92, whereby his application seeking amendment of the written statement was dismissed inter alia on the ground that beside being belated, if allowed it would amount to withdrawing the admission already made.

(2) In short, the facts of the case are that Mr.Shyam Bihari Mal, respondent herein filed a suit claiming possession of the ground floor portion of property No. B-172, East of Kailash,New Delhi, against the present petitioners.In para 18 of fhe plaint the value of the suit for the purpose of court fee and jurisdiction was assessed at Rs.75,000.00 . The petitioners (defendants before the trial court) filed a written statement. In reply to para 18 of the plaint it was stated that the said para being legal needs no reply. Subsequent to the filing of the said written statement, the defendants moved an application seeking amendment of the written statement. The said application was filed on 16th May,1986. The amendment was allowed. Against that order the present respondent came up in Revision. The said revision was ultimately disposed of in 1989. Amended written statement was taken on record on 21.1.91. Even in the amended written statement in reply to para 18,it was mentioned that para under reply being legal needs no answer. It may also be mentioned that the present petitioners filed a suit against the present respondent in this High Court for enforcement of their right regarding their share in the joint family property, seeking declaration of title, partition and permanent injunction. That suit has been listed as Civil Suit No.159/86. The said suit was filed on 7.1.86 in the High Court. After having filed the amended written statement in January 1991, the case proceeded on merits. Parties were allowed to file further documents. It was in February,1992 that the present application was filed seeking amendment on the ground that the Court had no jurisdiction as the value of the property in question was about 6 lakhs, hence the suit has not been properly valued for the purposes of court fee and jurisdiction. It ought to have been valued at Rs.6 lacs. This application was contested by the plaintiff (respondent herein). After hearing the learned counsel for the parties, the trial court came to the conclusion that the amendment sought was not only belated but also amounted to withdrawl of the admission already made. It is against this impugned order that the present revision has been filed.

(3) Mr. R.C. Verma appearing for the petitioner contended that delay cannot be a ground for rejection of the amendment in the written statement. An amendment of the written statement cannot be treated at par with an amendment of the plaint. Courts have been very strict while allowing amendment in the plaint but the same yard-stick is not applicable when allowing amendment in the written statement. If the amendment is necessary and essential for proper adjudication of the case then the same can be disallowed at any state. So far as the proposition of law is concerned there cannot be any quarrel with the same. However, in the facts and circumstances of the present case, it cannot be said that the amendment sought was bonafide or in the absence of the same, case cannot be adjudicated. From the facts enumerated above it is clear that the petitioners filed suit for declaration, partition and injunction in the High Court on 7.1.86 wherein they fixed the valuation of the suit for purposes of court fee and jurisdiction at Rs.l51akhs. The first amendment to the written statement was sought on 16.5.86 i.e.after the filing of their suit in the High Court. This shows that by the time the first amendment was sought, the defendants were aware about the value of the suit property, yet in reply to para 18 of the plaint, they did not raise any objection about the value of the suit or regarding court's jurisdiction. Infact there is no denial of the value stated by the plaintiff ill para 18 of the plaint. No reason has been assigned by the petitioners as to why the question of valuation and jurisdiction was not taken up by them at the first instance when written statement was filed or when the first amendment was sought on 16.5.86. On the contrary as indicated above, in reply to para 18 of the plaint, the defendants did not deny specifically the value of the property for the purpose of court fees and jurisdiction as disclosed and fixed by the plaintiff. This amounted to admission of facts regarding valuation of the property on the part of the defendants. The non denial of the specific averments amounts to admission. It is a well settled principle of law that an admission once made cannot be withdrawn unless by that withdrawal no right had accrued in favor of the party or that by the said withdrawal no right had been taken away. Having admitted the value of the property now the petitioners cannot be permitted to challenge the same. As a general rule an amendment ought not to be refused if the applicant had acted bonafide, but such an amendment will be refused where the applicant has been acting with ulterior motive to prolong the litigation. In this case, I find that having admitted the valuation of the suit property and submitting to the jurisdiction of the Court, the petitioners by the present amendment are seeking to prolong the litigation. The principle that an amendment which introduces a different or inconsistent case or takes away any right which has accrued to the other party should not beallowed,on all force applies to the facts of this case. By allowing this amendment the right which has accrued in favor of the respondent (plaintiff) would be taken away. As a matter of fact, the court has to be satisfied before allowing the amendment about the reasons offered, for not seeking such an amendment at the earliest. Moreover, the party must further satisfy the court as to why these objections were not originally taken, before it grants the amendment. As pointed out above, the petitioners have not given any reason what to talk of cogent reason as to why the valuation was not denied at the first instance or at least when first amendment was sought in May 1986,particularly when he himself by then had filed suit in the High Court alleging value of the property to be Rs.l5 lakhs.

(4) Mr. Paul appearing for the respondent contended that the Revision is barred by time.The impugned order was passed on 3.10.92. Certified copy was applied on 15.10.92 and was available on23.10.92. Revision was filed on 19.12.92. Registry returned the same on account of some objections on 3.1.93 with direction to refile it within a week. The Revision was filed on 18.1.93, by then the limitation had expired. Infact limitation expired on 10.1.93.

(5) I have beard the counsel turn the parties on the point and perused the record. The objection of limitation in refiling the revision after one week is too technical. The Revision on this ground alone cannot be rejected. Originally Revision was filed within time, however, if the same has been refiled beyond the period granted by the Registry, this delay for the reasons stated at the Bar can be condoned. Hence on the oral request of Mr.Verma, counsel for the petitioner, the delay in refiling the Revision was condoned. Mr. Paul, counsel for the respondent then argued that this revision was not maintainable on the ground that the amendment prayed for by the petitioner was hit by the provisions of Section 21(2) of the Code of Civil Procedure. Sub Section (2) of Section 21, Civil Procedure Code, is reproduced as under:- "(2)No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first intense at the earliest possible opportunity, and, in all cases where issues are settled, or before such settlement, and unless there has been a consequent failure of jutice."

(6) He, therefore, contended that in view of the above provision of the Code no objection regarding pecuniary jurisdiction of the court can be allowed after the issues had been settled. In this case the issues were settled in 1984. Even after the first amendment the case proceeded on merits no objection regarding valuation was taken. Hence at this stage amendment cannot beallowed. I find force in these submissions of the respondent. Sub-section (2) of Section 21' creates a bar for all the courts to allow any objection to be raised as to the limits of the pecuniary jurisdiction where issues have been settled. The objection can be raised either in the written statement or at the time of settlement of issues, unless, of course, there has been consequent failure of justice.

(7) In the case in band first time the issues were settled on 17.8.84 and the evidence of the defendant was recorded. No such amendment was sought. No objection as to the pecuniary jurisdiction of the Court was raised either in the written statement or there after at the time of settlement of issues. Even when the first amendment was sought in May,1986, the objection to the pecuniary jurisdiction was not raised. Therefore, I am of the view that it is too late in the day for the petitioners to raise the objection regarding valuation and jurisdiction. The same is barred by sub-section (2) of section 21 of the Civil Procedure Code. I also feel that by disallowing this amendment no consequential failure of justice has been caused to the petitioners because no such consequence vested in him.

(8) In view of the above discussion the revision fails and the same is hereby dismissed.