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Judgment
R.M. Savant, J.—This Petition takes exception to the Order dated 19.09.2009 passed by the learned Civil Judge Senior Division, at Ponda, by which order the application for amendment of the written statement filed by the Defendants came to be rejected. The rejection is on the ground that the "admission" which is there in the written statement as filed in the year 2002 is sought to be withdrawn. The Respondent herein is the original Plaintiff who has filed Special Civil Suit No. 20/2001 for recovery of an amount of Rs. 11,98,205.50 with interest at the rate of 24% per annum, amounting to Rs. 2, 22,176.50 with further interest at the rate of 24% per annum or such other interest the Trial Court deemed fit from the date of the suit till its realization.
In the plaint in para 3, it is averred by the Plaintiff as follows :
The Defendant No. 1 is a registered partnership firm and is engaged in the business as Stevedores and Contractors. The Defendant No. 2 and Defendant No. 3 are the present partners of the Defendant No. 1 and are looking after the day-to-day affairs of the Defendant No. 1.
In response in the written statement filed on 27.2.2002, the Petitioners herein i.e. the Defendants have stated as follows :
With reference to para 3 the facts stated there are correct.
It appears that the said suit came to be decreed ex-parte in the year 2008 upon which an Appeal came to be filed by the Petitioners herein as also an application for condonation of the delay which had occasioned in filing the Appeal. The application for condonation of delay was allowed on the basis of the statement made on behalf of the Petitioners that the entire amount would be deposited in the Trial Court. The amount was accordingly deposited by the Petitioners which has been so recorded in the order of this court dated 17.6.2009 passed in the said MCA No. 211/2009. Thereafter, the Appeal was listed for admission and by order dated 17.6.2009 the Appeal came to be allowed and the Decree came to be set aside. The matter came to be remanded back to the Trial Court with a direction that the suit be disposed of as early as possible and within six months from 15.7.2009. The Court whilst disposing of the Appeal observed that if the amount is deposited in the Trial Court, the Defendants could be permitted to adduce their evidence and the Trial Court could fix a date accordingly for the said purpose and on the said date the Defendants before it shall proceed further to adduce the evidence on merits.
The Defendants after the disposal of the said Appeal and the direction issued by the Trial Court moved an application for amendment on 28.8.2009. They sought to amend paragraphs 6, 7 and 9 of the written statement. From the point of view of the present Petition the amendment which they sought to paragraph 6 of the written statement is relevant, the amendment sought to be introduced was to the effect that the Defendant No. 3 was not a partner of the Defendant No. 1 firm at the relevant time. It is on the basis of the amendment to paragraph 6 of the written statement that a case is sought to be developed by the Defendants in paragraphs 7 and 9, on the said factual basis by amending the said paragraphs accordingly.
The Trial Court has considered the said amendment and by the impugned order has rejected the same. The rejection as mentioned above has been primarily on the ground that the admission which was in paragraph 6 of the written statement as originally filed was sought to be withdrawn. The Trial Court for the said purpose relied upon two judgments of the Apex Court which are referred to in the impugned order i.e. the judgment reported in Heeralal Vs. Kalyan Mal and Others, , and the judgment reported in Gautam Sarup Vs. Leela Jetly and Others, . The said judgments lay down the test that before while considering the grant of an application for amendment the Court is required to apply its mind on several factors including whether by reason of such amendment the claimant intends to resile from an express, admission made by him and such an event the application for amendment may not be allowed.
In the instant case as indicated above, the statement made in para 6 of the written statement accepting the case of the Plaintiff that the Defendant No. 3 was a partner is sought to be resiled from by way of the amendment and for the said purpose the Defendants i.e. Petitioners herein relied upon a certificate issued by the Register of Firm, Bhavnagar dated September, 2009.
On behalf of the Petitioners, it is sought to be contended that the amendment could not cause any prejudice in as much as a fact wrongly stated earlier in the written statement as originally filed is sought to be corrected.
It is further contended that the Defendants are entitled to take inconsistent and contrary pleas so far as they are not mutually destructive to each other and for the said purpose reliance is also placed on the judgment of the Apex Court reported in B.K.N. Narayana Pillai Vs. P. Pillai and Another, , in which case the Defendant had sought to take an alternative plea, that in the event he is not held to be lessee, the benefit of Section 60(b) of the Indian Easements Act, 1882 should be granted to him and in the second case reported in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Choudhary , where the Apex Court held that the Defendant is entitled to take contrary or contradictory stand.
In my view, the said judgments have no application in the fact situation of the present case. The Defendants in the instant case are seeking to withdraw the acceptance of the fact that the Defendant No. 3 was a partner of the said firm and on the said basis are seeking to introduce amendments in paras 7 and 9 whereby a new defence is now sought to be taken. The sum and substance is that the Defendant No. 3 could not have negotiated with the Plaintiff on behalf of the Defendant No. 1 as he was not a partner of the Defendant No. 1, in my view if such an amendment is allowed, the same would be prejudicial to the Plaintiffs. Another aspect that is required to be considered is that the said stand taken up by the Defendants is after a period of seven years and is based on a certificate issued by the Register of Firm, Bavnagar, in September, 2009, the question that arises is if the Defendant No. 3 was not a partner of the Defendant No. 1, how come the certificate was obtained only in September, 2009 and why did the Petitioners in the written statement as filed in the year 2002 accepted the position that the Defendant No. 3 was a partner. The said facts create a suspicion as regards the claim of the Petitioners on the basis of the said certificate.
Significantly, even before this Court in MCA as well as in the First Appeal there was not a whisper as regards the said statement of fact appearing in the written statement of the Defendants. The Petitioners in fact who were the Appellants in the said Appeal, it appears had prayed for a direction for the early disposal of the said suit within a particular time frame. It is only after the Decree came to be set aside and the direction was issued to dispose of the said suit within six months which period is to expire on 15.01.2010 that the application came to be filed in September, 2009. Therefore, the bonafide of the Defendants in filing the said application is also not beyond doubt. In the aforesaid conspectus of facts, the impugned order passed by the Trial Court cannot be faulted with. There is no illegality or infirmity in the impugned order for this Court to interdict in its Writ jurisdiction. The Writ Petition is accordingly dismissed. The direction passed by this Court to dispose of the said Special Civil Suit within a period of six months would continue to operate.