Life Insurance Corporation of India vs Atam Parkash Sharma

G.C. Garg, J.—This revision is directed against the order dated September 18, 1993 of the Subordinate Judge, Rajpura allowing amendment of the written statement.

Plaintiff-petitioner advanced a loan of Rs. 45000/- to the defendant-respondent for construction of his house under the Housing Scheme. The defendant was required to pay interest on the loan amount which was to be recovered from the insurance amount. The defendant created an equitable mortgage of the house for repayment of the loan as per the policy, accepted by the defendant. On his failure to pay monthly installments of interest, the loan amount was to become due immediately. The defendant failed to pay monthly installments of interest despite notice. He was served with a notice whereupon he gave in writing that he could not pay the instalments of interest and the loan amount and that the amount may be recovered by sale of house. Resultantly, the plaintiff filed a suit for the recovery of Rs. 52714/- by sale of the mortgaged property. The defendant filed written statement whereby he admitted the claim of the plaintiff in toto.

The defendant, however, on a later date moved an application under Order 6 Rule 17 of the CPC seeking amendment of the written statement. It was stated therein that he made admission erroneously and that he may be permitted to withdraw the admission made and thereby permitted to amend the written statement. The defendant sought permission to amend paras 1, 3, 7, 14, 16, 17 and 19 as also the prayer clause of the written statement. In fact, the defendant wanted to withdraw the admission earlier made without showing as to how the admissions earlier made were erroneous or wrong. The application came to be considered by the trial court and was allowed by the impugned order by observing that the amendment sought by the defendant was essential for the purposes of determining the real question in controversy between the parties.

It is against this order, the plaintiff has filed this revision.

Learned counsel for the petitioner submitted that the trial Court acted with the material irregularity and illegality in allowing the amendment of the written statement. Learned counsel further submitted that the defendant not only failed to aver but also failed to show that the admission earlier made in the written statement was made erroneously or under a mistaken belief. According to the learned counsel, no explanation has come on the record nor is one available in the order of the trial court.

After hearing learned counsel for the parties, I find force in the submission. The counsel for the petitioner was right in his submission that nothing was brought on the record to show that the admission earlier made in the written statement was either erroneous or made under a mistaken belief. A reference to the written statement earlier made clearly goes to show that the defendant admitted the claim of the plaintiff in toto and the parties were not at issue on any point whatsoever. It is in the circumstances not understood as to how the trial court adjourned the case for filing replication and framing issues. Once a written statement is filed wherein the claim was admitted and the parties were not at issue on any question of law and fact, the trial court ought to have decreed the suit forthwith. Instead of following this procedure, the trial court adjourned the case for replication and issues and ultimately allowed the amendment of the written statement. From the order nothing is discernible as to what explanation was offered by the defendant for seeking amendment and for withdrawing the admission made. The only explanation the learned counsel for the respondent offered during the course of hearing was that the defendant made admission in the written statement on account of negligence of the counsel. This in my view is hardly a ground to permit the defendant to withdraw a clear admission made in the written statement unless by reference to the facts it is shown that the same was made under mistaken belief or the same was erroneous. The amendment sought does not appear to be bona fide on the face of it. Not only this, the defendant in the reply to the notice issued by the plaintiff had clearly admitted the claim of the plaintiff and in the written statement the defendant also admitted the claim in toto. Therefore, there was nothing before the trial court to allow the amendment of the writ statement. No explanation was shown by the defendant for seeking amendment either in the application or during the course of arguments. The order under revision is thus not sustainable and has to be set aside.

For the reasons recorded above, the revision is allowed and the order under revision is set aside. The petitioner shall have the costs of this revisions from the respondent which are quantified at Rs. 500/-. The parties are directed to appear in the trial court on June 9, 1994, whereafter the trial court shall proceed to dispose of the suit in accordance with law.