Ranjit Kaur vs G.S. Sandhu & Ors.
2009 Latest Caselaw 2973 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.546/2006 & CM 11794/2006

RANJIT KAUR                      .....Appellant through
                                 Mr. I.S. Alag, Adv.

                  versus

G.S. SANDHU & ORS.               ......Respondent through
                                 Mr. J.K. Seth, Sr. Adv. with
                                 Ms.Shalini Kapoor, Adv. for
                                 Respondent No.1

%                        Date of Hearing : July 23, 2009

                         Date of Decision : August 03, 2009

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE V.K. JAIN
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                     No
      2. To be referred to the Reporter or not?           Yes
      3. Whether the Judgment should be reported
         in the Digest?                                   Yes

VIKRAMAJIT SEN, J.

1. This Appeal assails that part of the Order dated 18.4.2006

passed by the learned Single Judge in which IA No.5945/2002

filed by Defendant No.1 under Order VI Rule 17 of the Code of

Civil Procedure, 1908 had been allowed. There can be no cavil

that amendments, especially to Written Statements, must be

liberally allowed. One of the exceptions is that the admission

contained in the Written Statement cannot be allowed to be

withdrawn, although the Supreme Court has recognized

reservations and limitations even to this principle. In a recent

decision their Lordships, while taking into account various

decisions of Supreme Court in Sushil Kumar Jain -vs- Manoj

Kumar, 2009(7) Scale 103, have held thus:-

9. ....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.

10. At this stage, we may remind ourselves that law 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. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action (See Baldev Singh - vs- Manohar Singh, AIR 2006 SC 2832).

11. Similar view has also been expressed in Usha Balashaheb Swami -vs- Kiran Appaso Swami, AIR 2007 SC 1663. It is equally well settled that in the case of an amendment of a written statement, the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of

defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed.

12. Keeping these principles in mind, let us now take up the question raised before us by the learned Counsel for the parties. As stated herein earlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Panchdeo Narain Srivastava - vs- K. Jyoti Sahay, AIR 1983 SC 462, while considering this issue, held that the admission made by a party may be withdrawn or may be explained. It was observed in paragraph 3 of the said decision as follows:

An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment, an admission of fact cannot be withdrawn....

13. In view of our discussions made hereinabove and applying the principles laid down by this Court in the aforesaid decisions, we are therefore of the view that the High Court as well as the learned Rent Controller had acted illegally and with material irregularity in the exercise of its jurisdiction in not allowing the application for amendment of the written statement of the appellant.

2. The Defendant is usually permitted to adduce facts which

are relevant to the decision and which may have not been

pleaded earlier, since the delay which may result in adjudicating

such applications would normally be duly compensated by

awarding costs. It is this principle which persuades us to agree

with the reasoning and dialectic of the learned Single Judge in

the impugned Order. In allowing the application of Defendant

No.1 to amend his Written Statement, no admission made by

him can, by any stretch of imagination, be seen to have been

permitted to be withdrawn. The pleadings in the original

Written Statement have only been added to. The Appellant is

arrayed as Defendant No.3 in the Plaint and the pleadings

relevant to her, inter alia, are as follows:-

"The properties with three sisters, that is, defendants were obtained by them through court decrees through mother's will. Father, however, gave by will dated 29th January, 1982 certain agricultural lands to defendant No.3 (which the answering defendant accepts) claiming these lands as his share of HUF consisting of this land plus some more agricultural land and Banaur house and vacant plot".

3. In this regard, the amendments affecting the rights of

Defendant No.3/Appellant are in the form of paragraph 3(b) and

9(b) to the Preliminary Submissions which are in these words:-

3(b) The Defendant No.1 submits that if for any reason, the Will dated 4.3.1992 propounded by the Plaintiff is held to be valid, and it is held that Shri Gurpuran Singh had the right to execute the Will in respect of the

properties in suit ; though this fact is not conceded by Defendant No.1, in that event also, it is submitted that by the Will dated 4.3.1992, the Will dated 29.1.1982 stood revoked and Defendant No.3 was not entitled to the properties bearing Khasra Nos. 72/4919, 4929, 4930, 5038, 5039, 5040, 5041, 5042, 5043, 5044, 5045, 5046, 5047 and 5048 situated in Village Banur Punjab and the properties bequeathed by Will dated 29.1.1982 are also liable to be partitioned amongst the Plaintiff and Defendants No.1 to 4.

....

9(b) The Defendant No.1 submits that if for any reason, the Will dated 4.3.1992 propounded by the Plaintiff is held to be valid, and it is held that Shri Gurpuran Singh had the right to execute the Will in respect of the properties in suit ; though this fact is not conceded by Defendant No.1, in that event also, it is submitted that by the Will dated 4.3.1992, the Will dated 29.1.1982 stood revoked and Defendant No.3 was not entitled to the properties bearing Khasra Nos. 72/4919, 4929, 4930, 5038, 5039, 5040, 5041, 5042, 5043, 5044, 5045, 5046, 5047 and 5048 situated in Village Banur Punjab and the properties bequeathed by Will dated 29.1.1982 are also liable to be partitioned amongst the Plaintiff and Defendants No.1 to 4.

It will be noticed that these paragraphs are verbatim identical to

each other.

4. We are unable to agree with Mr. I.S. Alag, learned counsel

for the Appellant, that any admission made by Defendant No.1

has been allowed to be withdrawn or even to be diluted or

explained away. It is significant that the Appellant does not

dispute the Will executed by her father in 1992, paragraph 4 of

which reiterates the bequest in her favour in the holograph Will

dated 29.1.1982. It is axiomatic that no sooner the Will dated

4.3.1992 is accepted, its effect will be to revoke all previous

Wills, unless the later Will clearly excludes the operation of an

earlier Will. We may record that the parties, other than

Respondent No.1/Defendant No.1, have taken the stand that

there are interpolations in the 1992 Will. That is a matter which

will have to await the outcome of the Trial, as well also be the

aspect of whether the properties in question are HUF properties

which could be transferred by the late father of the parties

hereto. In allowing the application, the learned Single Judge has

not returned any finding, whatsoever, on this important aspect

of the dispute, as we are also specifically not doing.

5. In these circumstances, we find no error in the impugned

Order. Several other issues have been contended before us,

such as the existence of a Family Arrangement dated 31.5.1994

etc. The probative value and relevance of these documents will

undoubtedly be gone into threadbare when the Suit comes up

for Final Disposal.

6. At the conclusion of the arguments, Mr. Seth, learned

Senior Counsel for Respondent No.1, had challenged the

maintainability of the Appeal, predicated on the celebrated

decision of the Supreme Court in Shah Babulal Khimji -vs-

Jayaben D. Kania, (1981) 4 SCC 8. The argument is that the

impugned Order does not finally decide any rights of the parties

and hence is not appealable. We do not propose to go into this

issue.

7. In these circumstances, the Appeal is dismissed with no

order as to costs.

                                          ( VIKRAMAJIT SEN )
                                                JUDGE



August 03, 2009                                ( V.K. JAIN )
tp                                             JUDGE