Smt. Triveni Shivhare & Anr. vs Sanjay Vyas

“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.”

21.

As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the courts in the administration of justice between the parties. In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. [AIR 1957 SC 357] this Court observed

“that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event”. In that case this Court also held

“that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice”.

22.

Keeping these principles in mind, namely, that in a case of 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, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.

23.

As noted herein earlier, Mr Lalit placed strong reliance on Heeralal [(1998) 1 SCC 278] to contend that the admission made by the appellants in the original written statement in the facts and circumstances of the case could not at all be taken away. In our view, the factual position of the case before us and the facts involved in that decision are different. In Heeralal case [(1998) 1 SCC 278] a definite stand was taken that the plaintiff had a share in seven out of the ten scheduled properties as they belonged to the plaintiff and Defendants 1 and 2 as joint family properties. However, the defendants moved an application for amendment of the written statement, which was not allowed by the trial court. While dealing with this nature of amendment, in that decision, this Court observed that it was wrong on the part of the High Court to assume that by taking an inconsistent stand, the respondents would prejudicially affect the appellant's case. The Court observed: (SCC pp. 281-82, para 6)

“6.

In our view, the order passed by the High Court under Section 115 CPC, allowing withdrawal of earlier admissions of Defendants 1 and 2 in their original written statement about 5 out of 7 items of Schedule A properties cannot be sustained. The reason is obvious. So far as Schedule A properties were concerned, a clear admission was made by Defendants 1 and 2 in their joint written statement in 1993 that 7 properties out of 10 were joint family properties wherein the plaintiff had 1/3rd share and they had 2/3rds undivided share. Once such a stand was taken, naturally it must be held that there was no contest between the parties regarding 7 items of suit properties in Schedule A. The learned trial Judge, therefore, was perfectly justified in framing Issue 2 concerning only remaining three items for which there was dispute between the parties. In such a situation under Order 15 Rule 1 CPC the plaintiff even would have been justified in requesting the court to pass a preliminary decree forthwith qua these 7 properties. The said provision lays down that, ‘where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgment’. Even that apart, the defendant-respondents did not think it fit to move any amendment application for getting out of such admission till the plaintiff moved an application for appointment of receiver regarding admitted items of properties. It is only thereafter that the application for amendment was moved. Learned trial Judge was right when he observed that even the grounds made out in the application were not justified. Consequently, there is no question of taking inconsistent stand which would not have affected prejudicially the plaintiff as wrongly assumed by the High Court.” Keeping the aforesaid observations and also the facts involved in Heeralal case [(1998) 1 SCC 278] in mind, we are of the view that the decision in that case may not be of any help to the respondents.

24.

Coming back to the facts of the present case regarding amendment of the written statement, we find that the appellants had stated in para 8 of their original written statement “that the plaintiff and Defendants 1 to 7 have got ½ share and Defendants 8 to 14 have got ½ share in all the family properties” and that the maternal aunts have also got share. By seeking incorporation of paras 8-A and 8-B and substitution of para 8 in the written statement, the appellants have maintained the admissions made by them in para 8 of the written statement but added a proviso or condition to the admission. Therefore, it was not a case of withdrawal of the admission by the appellants by making the application for the amendment of the written statement but in fact such admission was kept intact and only a proviso has been added. This, in our view, is permissible in law and the question of withdrawing the admission made in para 8 in its entirety in the facts as noted hereinabove, therefore, cannot arise at all.

25.

Since we have already held that in the case of amendment of a written statement, the defendant is entitled to take new defence and also to plead inconsistent stand and in view of our discussions made hereinabove that by making the application for amendment of the written statement, admission was not at all withdrawn by the appellants nor a totally inconsistent plea was taken by the appellants in their application for amendment of the written statement, the High Court had failed to appreciate that by the proposed amendment, the appellants were not withdrawing their admission in respect of the half-share in the ancestral property rather they only added that the plaintiff and Defendants 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half-share in the property of late Veersangayya. That apart, it appears from the record that the written statement filed by the appellants was before the death of Defendant 1 (first wife of Appasao). After the death of Defendant 1, when the plaintiff and Defendants 2 to 8 claimed themselves as heirs and legal representatives of Defendant 1, the appellants sought amendment of the written statement challenging the legitimacy of the plaintiff and Defendants 2 to 8. In view of the discussions made hereinabove, we do not think that it was impermissible in law for the appellants to seek amendment of the written statement in the manner it was sought for.

26.

Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and Defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of the plaintiff and Defendants 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao. Therefore, it must be held that in view of our discussions made hereinabove, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement.”

“15.

This court is in agreement with the view taken by the learned Trial Court that the said Trust was not a necessary party to the suit, as there exists the relationship of landlord and tenant between the parties, and as such, there is no illegality or perversity in the said order.”

“¼.k½& ;g fd çfrokn i= ds vfrfjä dFku 'kh"kZd ds vUrxZr pj.k la[;k 31 dh f}rh; ifä esa “ugh gS” ds i'pkr~ fuEu çdkj tksMk tk;s& "rFkk ;g Li"V fd;k tkrk gS fd çfroknh lå 1 dHkh Hkh oknxzlr lEifÙk esa fdjk;snkj] v/;kflr ugh jghA”

“6.

In our view, the order passed by the High Court under Section 115 CPC, allowing withdrawal of earlier admissions of Defendants 1 and 2 in their original written statement about 5 out of 7 items of Schedule A properties cannot be sustained. The reason is obvious. So far as Schedule A properties were concerned, a clear admission was made by Defendants 1 and 2 in their joint written statement in 1993 that 7 properties out of 10 were joint family properties wherein the plaintiff had 1/3rd share and they had 2/3rds undivided share. Once such a stand was taken, naturally it must be held that there was no contest between the parties regarding 7 items of suit properties in Schedule A. The learned trial Judge, therefore, was perfectly justified in framing Issue No. 2 concerning only remaining three items for which there was dispute between the parties. In such a situation under Order XV Rule 1 of CPC the plaintiff even would have been justified in requesting the Court to pass a preliminary decree forthwith qua these 7 properties. The said provision lays down that, “where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgment”. Even that apart, the defendant-respondents did not think it fit to move any amendment application for getting out of such admission till the plaintiff moved an application for appointment of receiver regarding admitted items of properties. It is only thereafter that the application for amendment was moved. Learned trial Judge was right when he observed that even the grounds made out in the application were not justified. Consequently, there is no question of taking inconsistent stand which would not have affected prejudicially the plaintiff as wrongly assumed by the High Court. We also fail to appreciate how the decisions on which strong reliance was placed by the learned counsel for the respondents can be of any assistance to him. We may briefly refer to them.

7…..

8…..

9….

10.

Consequently it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff's case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by the latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three-member Bench of this Court taking a diametrically opposite view.

11.

We were then taken to another decision of this Court in the case of Panchdeo Narain Srivastava v. Jyoti Sahay [1984 Supp SCC 594] . In that case the plaintiff was held entitled to amend his plaint by submitting that though earlier he stated that the defendant was uterine brother, the plaintiff by amendment in his plaint could submit that the defendant was his brother and the word “uterine” could be dropped. Even in that case the main case put forward by the plaintiff did not get changed as the plaintiff wanted to submit that the defendant was his brother. Whether he was uterine brother or real brother was a question of decree and depended on the nature of evidence that may be led before the Court. Therefore, the deletion of the word “uterine” was not found to be displacing the earlier case of the plaintiff. On the facts of the present case also, therefore, the said decision cannot be of any assistance to the learned counsel for the respondents.

12.

In our view, therefore, on the facts of this case and as discussed earlier, no case was made out by the respondents, contesting defendants, for amending the written statement and thus attempting to go behind their admission regarding 5 out of 7 remaining items out of 10 listed properties in Schedule A of the plaint. However, so far as Schedule B properties are concerned, from the very inception the defendants' case qua those properties was that the plaintiff had no interest therein. By proposed amendment they wanted to introduce an event with reference to those very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely or prejudicially affected the case of the plaintiff or displaced any admission on their part qua Schedule B properties which might have resulted into any legal right in favour of the plaintiff. Therefore, so far as Schedule B properties were concerned, the amendment could not be found fault with. Hence exercising the powers under Article 136 of the Constitution of India we would not be inclined to interfere with that part of the decision of the High Court allowing the amendment in the written statement, even though strictly speaking High Court could not have interfered with even this part of the order under Section 115 CPC.”

“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.”

“55.

We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ext. 95. No facts are pleaded nor are any grounds raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Ext. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondent-original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed.”