Madhya Pradesh High Court
Sudhir Datt Pandey vs Upendra Datt Alias Upendra Pandey Tanay on 27 February, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 27th OF FEBRUARY, 2025
M.P. NO. 3762 of 2022
SUDHIR DATT PANDEY
Versus
UPENDRA DATT ALIAS UPENDRANATH PANDEY AND OTHERS
...........................................................................................................................................................................................................................................................
Appearance:
Shri Ashok Lalwani - Advocate for the petitioner.
Shri Akhilesh Kumar Jain - Advocate for the respondent No.1-the main
contesting respondent.
Shri Alok Agnihotri - Government Advocate for the respondents/State.
...........................................................................................................................................................................................................................................................
Heard on : 12.12.2024.
Pronounced on : 27.02.2025
ORDER
This petition is of 2022 filed under Article 227 of the Constitution of
India on behalf of the petitioner questioning the correctness of order dated
21.07.2022 passed by the trial Court in a pending civil suit, rejecting the
application filed by the defendant/petitioner under Order 6 Rule 17 of the Code of
Civil Procedure. By way of the said application, the defendant/petitioner is
seeking amendment in the written-statement. Indisputably, the application has
been filed after completing the evidence of plaintiff.
2. A suit has been filed by the plaintiff/respondent No.1 for declaration of
partition dated 13.12.1963 as illegal and void and also all consequential
transactions made in pursuance of the said partition deed.
3. As per the submissions made by counsel for the parties and on perusal of
record, it appears that the trial Court has rejected the application of the defendant
on the ground of delay saying that the same has been filed after completing
evidence of the plaintiff and also with an intention to fill up the lacuna which
came to the notice of the defendant after recording the evidence of plaintiff and
also on the ground that by way of amendment, the defendant is trying to withdraw
the admission, already been made in the written-statement.
4. I have perused the record and also the order impugned.
5. As pointed out by Shri Akhilesh Kumar Jain, learned counsel for the
respondent/plaintiff that in paragraphs 4 and 5 of the written-statement, the
pleadings made in regard to the partition that took place between the parties and
there was reference of two partitions, i.e. dated 25.01.1960 and 01.06.1977. The
stand of the plaintiff in the plaint was that he was not aware of the partition dated
13.12.1963 on the basis of which defendant/petitioner is claiming right over the
property and that partition was said to be declared illegal and void. Shri Jain has
pointed out that in the written-statement filed by the defendant/petitioner, in
paragraph 4, he has admitted about two partitions i.e. dated 25.01.1960 and
01.06.1977 and as such, admitted the pleadings made by the plaintiff in his plaint.
Although in paragraph 5 of the written-statement, there was a reference of
partition dated 13.12.1963 which is confined to the land of Khasra No.221, area
measuring 0.78 decimal and by that partition only defendant got a share but Gopal
Datt and Upendra Datt did not get any share in the same. However, it is pointed
out by Shri Jain that the amendment application and the amendment sought to be
made in the written-statement, the paragraph 1 of the said application and
pleadings made therein are contrary to the pleadings made in the written-statement
especially in paragraphs 4 and 5. He has submitted that from paragraph 1 of the
amendment application and the portion which is sought to be amended is contrary
to the pleadings and it reveals that there was another partition that took place prior
to 13.12.1963, the batwaranama on which petitioner /defendant relied upon. Shri
Jain has further submitted that this pleading is totally contrary to the admission
made in paragraph 4 of the written-statement because it does not reveal about any
partition prior to 13.12.1963 but the pleading in paragraph-1 of the application is
absolutely contrary and it is nothing but a change of admission made by the
defendant. According to Shri Jain, the defendant/petitioner is projecting a new
case by way of amendment, that too after completing the evidence of
plaintiff/respondent No.1 and, therefore, the said application cannot be allowed
and, therefore, the order passed by the trial Court is just and proper and does not
call for any interference.
6. Shri Lalwani, learned counsel for the petitioner/defendant on the other
hand has submitted that it is not the withdrawal of admission but only an attempt
to elaborate the pleadings already made in the written-statement and that can be
done at any stage and no further amendment would be required in the plaint and
no prejudice would be caused to the parties as nature of suit does not change by
making amendment in the written-statement. He has also relied upon a judgment
of Supreme Court in case of Life Insurance Corporation of India Vs. Sanjeev
Builders Pvt. Ltd. and another passed in Civil Appeal No.5909/2022 (Arising
out of SLP (C) No.22443 of 2019) wherein the Supreme Court in paragraph 70 has
observed as under:-
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the
requisite conditions for application thereof are satisfied and the field of
amendment of pleadings falls far beyond its purview.The plea of
amendment being barred under Order II Rule 2 CPC is, thus, misconceived
and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining
the real question in controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is apparent from the use
of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication
of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek
to withdraw any clear admission made by the party which confers a
right on the other side and
(c) the amendment does not raise a time barred claim, resulting in
divesting of the other side of a valuable accrued right (in certain
situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced,
in which case the fact that the claim would be time barred becomes a
relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should
avoid a hyper technical approach, and is ordinarily required to be liberal
especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly
consider the dispute and would aid in rendering a more satisfactory
decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a
new approach without introducing a time barred cause of action, the
amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify
the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the
prayer. Where the aspect of delay is arguable, the prayer for amendment
could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of
action, so as to set up an entirely new case, foreign to the case set up in the
plaint, the amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in the plaint, and is
predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the
court is required to be liberal in its approach. The court is required to bear
in mind the fact that the opposite party would have a chance to meet the
case set up in amendment. As such, where the amendment does not result
in irreparable prejudice to the opposite party, or divest the opposite party of
an advantage which it had secured as a result of an admission by the party
seeking amendment, the amendment is required to be allowed. Equally,
where the amendment is necessary for the court to effectively adjudicate on
the main issues in controversy between the parties, the amendment should
be allowed. (See Vijay Gupta v.Gagninder Kr. Gandhi & Ors., 2022
SCC OnLine Del 1897).
7. Considering the submissions and also perusal of the law laid down by
the Supreme Court in the aforesaid case, this Court is of the opinion that a suit has
been filed by the plaintiff/respondent No.1 for declaration of partition deeds dated
13.12.1963 and 06.08.2005 as illegal and void so also the mutation was done in
pursuance of these partition deeds and also claimed declaration of title in respect
of land belonging to Khasra No.221 for the area ad-measuring 0.21 acres out of
0.78 acres, Village Kolgawan, District Satna. A written-statement was filed by the
defendant Nos. 1 and 2 in which there was a reference of Batwaranama dated
25.01.1960 and 01.06.1977 and these partition deeds have been admitted by the
defendant/petitioner in reply to the pleadings made in the plaint in paragraph 4 of
the same. Further in paragraph 5, stand has been taken that there was another
partition deed executed on 13.12.1963 in which plaintiff did not get any share.
8. Thus, it is clear from the pleadings of the parties that the
defendant/petitioner has admitted in the plaint about partition deeds dated
25.01.1960 and 01.06.1977 and also taken a stand that thereafter another partition
deed dated 13.12.1963 got executed and plaintiff sought decree of declaration for
declaring the partition deed dated 13.12.1963 illegal and void.
9. However, an amendment application has been filed by the
defendant/petitioner vide Annexure P/3, taking a new stand that before the
partition deed dated 13.12.1963, another partition took place and this pleading was
sought to be amended in the written-statement.
10. It is the stand of the counsel for the respondent No.1/plaintiff that this
amendment is contrary to the stand taken by the defendant/petitioner in his
written-statement but after recording the statement of the plaintiff/respondent
No.1, this amendment application has been filed seeking amendment in the
pleading which is contrary to the pleading already existing in the written-statement
and would also amount to changing the stand of the defendant and would also
amount to withdrawal of admission about Batwaranama dated 25.01.1960 and
01.06.1977.
11. The Supreme Court in case of Life Insurance Corporation of India
(supra) has also laid down as to when amendment can be allowed. The Supreme
Court in paragraph 70 has also observed that if a party is seeking withdrawal of
any clear admission by way of amendment, the same cannot be allowed. In this
case, in my opinion, the defendant by amending the pleading changing his stand
and giving reference of one partition which was not there in the original written-
statement and which also amounts to withdrawal of admission about partition
deeds dated 25.01.1960 and 01.06.1977.
12. The Supreme Court in case of Revajeetu Builders and Developers Vs.
Narayanaswamy and Sons and Others (2009)10 SCC 84 has also observed that
the Courts have very wide discretion in the matter of amendment of pleadings but
Court's power must be exercised judiciously and with great care. While deciding
applications for amendment, the Courts must not refuse bona fide, legitimate,
honest and necessary amendments and should never permit mala fide, worthless
and/or dishonest amendments. In the present case, I do not find that the trial Court
has exercised its discretion injudiciously and, therefore, no interference in the
order of the trial Court, in my opinion, is called for.
13. Further, the Supreme Court in case of M/s. Modi Spinning and
Weaving Mills Co. Ltd. And another Vs. M/s. Ladha Ram and Company
(1976)4 SCC 320 has observed as under:-
"9. The decision of the trial court is correct. The defendants cannot be
allowed to change completely the case made in paras 25 and 26 of the
written statement and substitute an entirely different and new case.
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.
11. We are told that the defendants proposed amendments to two other
paras of written statement. These are paras 4 and 19 of the written
statement. These amendments were also rightly rejected.
12. For the foregoing reasons the appeal must fail. The
defendants/appellants cannot be allowed to amend the written statement in
the manner suggested.
13. The two alternative pleas of the defendants as alleged in paras 25 and 26
of the written statement are there. The parties will be able to make their
rival contentions on the pleadings as to the issues to be raised. The
defendants wish to raise issues on those paras 25 and 26. Counsel for the
plaintiff states that it is open to the defendants to apply for the framing of
the issues. They will be at liberty to do so."
As per the observation made by the Supreme Court and in my opinion, here in the
present case by way of amendment, defendant/petitioner is trying to take a new
stand and is also trying to establish a new case which causes prejudice to the
plaintiff/respondent No.1 because plaintiff's evidence is already over and as such,
amendment, cannot be allowed.
14. The Supreme Court in case of Usha Balashaheb Swami and Others
Vs. Kiran Appaso Swamy and Others (2007)5 SCC 602, dealing with the scope
of amendment and discretion of the Courts has observed as under:-
"19. It is equally well-settled principle that a prayer for amendment of the
plaint and a prayer for amendment of the written statement stand on
different footings. The general principle that amendment of pleadings
cannot be allowed so as to alter materially or substitute cause of action or
the nature of claim applies to amendments to plaint. It has no counterpart in
the principles relating to amendment of the written statement. Therefore,
addition of a new ground of defence or substituting or altering a defence or
taking inconsistent pleas in the written statement would not be
objectionable while adding, altering or substituting a new cause of action in
the plaint may be objectionable.
20. Such being the settled law, we must hold that in the case of amendment
of a written statement, the courts are more liberal in allowing an
amendment than that of a plaint as the question of prejudice would be far
less in the former than in the latter case (see B.K. Narayana Pillai v.
Parameswaran Pillai [(2000) 1 SCC 712] and Baldev Singh v. Manohar
Singh [(2006) 6 SCC 498] ). Even the decision relied on by the plaintiff in
Modi Spg. [(1976) 4 SCC 320] clearly recognises that inconsistent pleas
can be taken in the pleadings. In this context, we may also refer to the
decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas
Chaudhary [1995 Supp (3) SCC 179] . In that case, the defendant had
initially taken up the stand that he was a joint tenant along with others.
Subsequently, he submitted that he was a licensee for monetary
consideration who was deemed to be a tenant as per the provisions of
Section 15-A of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947. This Court held that the defendant could have validly
taken such an inconsistent defence. While allowing the amendment of the
written statement, this Court observed in Basavan Jaggu Dhobi case [1995
Supp (3) SCC 179] as follows: (SCC p. 180, para 3)
"3. As regards the first contention, we are afraid that the courts
below have gone wrong in holding that it is not open to the
defendant to amend his written statement under Order 6 Rule 17
CPC by taking a contrary stand than what was stated originally
in the written statement. This is opposed to the settled law. It is
open to a defendant to take even contrary stands or contradictory
stands, thereby the cause of action is not in any manner affected.
That will apply only to a case of the plaint being amended so as
to introduce a new cause of action."
Although, the Supreme Court as observed above, has already drawn a distinction
of amendment in the plaint and also of written-statement but at the same time, this
Court has to see whether the amendment sought by the defendant/petitioner in the
written-statement if causing any prejudice to the plaintiff, the same cannot be
allowed.
15. Here in this case, when plaintiff's evidence is over, the defendant by
way of amendment in the written-statement came up with a new stand and also
introducing some partition which was never there in the written-statement when
plaintiff was recording his statement. That partition was never discussed neither by
the plaintiff nor by the defendant but only after evidence recorded and concluded
by the plaintiff on his side, the defendant/respondent No.1 moved an application
for amendment. Although, counsel for the petitioner/defendant has tried to
establish that the amendment which is being sought cannot be considered to be
withdrawal of admission and, therefore, the said amendment could not have been
refused but in my opinion, introducing a new stand and the fact which was not
there in the mind of the plaintiff when his evidence was recorded and he had no
opportunity to get his written-statement recorded considering the stand of the
defendant and if amendment is allowed then the same would cause prejudice to the
plaintiff and as such, that amendment cannot be allowed because it is nothing but
introduction of new stand of the defendant. Therefore, in my opinion, nothing
wrong has been committed by the trial Court in rejecting the application and not
allowing the defendant/petitioner to take a new stand at the stage when evidence
of the plaintiff was already over.
16. Thus, in my opinion, the trial Court has rightly rejected the application.
It is a suit of 2009 and the trial Court has rejected the application on the ground of
delay but that was not the sole ground and rejection of application for amendment
is also on the ground that amendment if allowed, would amount to withdrawal of
admission and as such, the trial Court did not commit any patent illegality and
irregularity in rejecting the application. The submission made by counsel for the
petitioner, in my opinion, does not have any substance and there is nothing
contrary to the law laid down by the trial Court as has been observed by the
Supreme Court in case of LIC of India (supra). The petition being without any
substance, is hereby dismissed.
17. However, the trial Court is directed that looking to the nature of suit and
the fact that it has been filed in 2009, the same shall be concluded expeditiously,
preferably within a period of six months.
(SANJAY DWIVEDI)
JUDGE
rao
SATYA SAI RAO
2025.02.28
10:46:05 +05'30'
