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1983 DIGILAW 649 (ALL)

Swami Durrkeshranand Saraswati Ji v. Jagatguru Shri Shankaracharya Jyotish Peethadhiswar

1983-09-13

V.K.MEHROTRA

body1983
ORDER V.K. Mehrotra, J. - This revision under section 115 CPC is directed against an order of the Civil Judge. Allahabad refusing the prayer of the applicant for being permitted to amend the written statement filed by him. 2. Shri Swaroopanand Saraswati filed a suit claiming that he was the Shankaracharya of Jyotish Peeth and was performing the duties and responsibilities of that office since December 7, 1973. The first defendant Sri Ramji Tripathi calling himself as Swami Shantanand Saraswati) was giving out that he was the Shanakaracharya of Jyotish Peeth -having been so appointed by the late Shanakaracharya Swami Brahmanand through a Will. The alleged will was a fabricated document and that neither was Swami Brahmanand competent to make any will nor had he actually done so. Dwarika Prasad Shastri calling himself Swami Durrkeshwaranand Saraswati, applicant in this Court as defendant No. 2. admitted the claim of the plaintiff who had also alleged that neither the second defendant nor Swami Vishva Devanand Saraswati, the third defendant or Swami Parmanand Saraswati the fourth defendant (since deadl were qualified to hold the office of Shankaracharya. 3. In the written statement originally filed, the second defendant did not dispute that the will on the basis whereof the first defendant was claiming to be appointed as Shakaracharya, was forged. This written statement was filed on August 26. 1979. In the year 1980, on March 17, he made an application for the amendment of the written statement and amongst other things wanted to assert that there was a valid will made by the late Shakaracharya and that he was entitled to be the Shankarachaya under it. 4. Before the trial Judge an objection was taken to the prayer for amendment and it was emphasised that the amendment sought, if permitted, would deprive the plaintiff of the benefit of the admission made in his favour by this defendant. This objection found favour with the learned Judge and primarily on this account, the prayer was rejected placing reliance upon the decision of the Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co., ( AIR 1977 SC 680 ). 5. In this Court, the Plaintiff, arrayed as the first opposite party, has taken the stand through his counsel Shri S.O.P. Agrawal, that the amendment sought by the second defendant may be permitted. Ltd. v. Ladha Ram & Co., ( AIR 1977 SC 680 ). 5. In this Court, the Plaintiff, arrayed as the first opposite party, has taken the stand through his counsel Shri S.O.P. Agrawal, that the amendment sought by the second defendant may be permitted. But it is the first defendant represented by Sri B. R. Tripathi, Advocate, who has taken objection to the porposed amendment and canvassed that the order of the trial Judge he upheld. It has been urged on behalf of the first defendant by Sri B. R. Tripathi that inasmuch as, the proposed amendment would completely alter the case initially set up by the applicant and would deprive the first defendant of the benefit of the admission made by the second defendant that the alleged Will was a forged document in a suit filed by the second defendant at Varansi claiming to , he Shankaracharya tinder that very Will, it should not he permitted. 6. In the present suit, before succeeding in his claim, plaintiff Swami Swaroopanand Saraswati will have to establish that the will under which the first defendant Ramji Tripathi was claiming to be the Shankaracharya was a fabricated document and that the late Shankaracharya was not competent to make a will or nominate any successor or successors by it. The mere fact that the second defendant, Durrkeshranand Saraswati, had admitted that the Will was fabricated ,document, by itself, will not entitle him to the decree claimed. He will still have to meet the contest put in by the first defendant Ramji Tripathi. 7. Though filed in the year 1974, even issues have not been framed, according to the counsel for the plaintiff, in the suit out of which this revision arises. The plaintiff is anxious for an early disposal of the suit and to him it does not matter whether the second defendant Durrkeshranand Saraswati acknowledges the Will to be forged or joins the first defendant Ramji Tripathi in saying that there was a Will validly executed by the late Shankaracharya. The plaintiff does not now resist the claim of the second defendant for the amendment of the written statement. 8. "The court should be extremely liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side". Haridas Aildas Thadani v. Godrej Rustom Kermani ( AIR 1983 SC 319 ). The plaintiff does not now resist the claim of the second defendant for the amendment of the written statement. 8. "The court should be extremely liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side". Haridas Aildas Thadani v. Godrej Rustom Kermani ( AIR 1983 SC 319 ). "Provisions for the amendment of pleadings, subject to such terms as to costs and giving to all parties concerned necessary opportunities to meet exact situations resulting from amendments. are intended for promoting the ends of justice and not for defeating them. ....Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in Civil cases are meant to give to each side intimation of the case of the other so that it may he met, to enable courts to determine what is really at issue between the parties and to prevent deviations from the course which litigation on particular cause of action must take". M/s. Ganesh Trading Co. v. Moti Ram. ( AIR 1978 SC 484 ). "An admission made by a party may he withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot he withdrawn." (Panchdeo Narain Srivastava v. Km. Jyoti Sahay. AIR 1983 SC 462 . 9. The present case is an instance of a prayer for the amendment of a plea taken by a defendant earlier which is not opposed by the other side, namely, the plaintiff. There is no grievance by the plaintiff that he would suffer loss of any advantage or benefit which had accrued to him by the admission made by the defendant. It is the co-defendant who is resisting the prayer for amendment not because it deprives him of any advantage in the suit in which it is sought to be withdrawn but in some other litigation between the two defendants. Such a consideration is, as rightly urged by the plaintiffs counsel hardly relevant for considering the question whether the amendment sought in the present suit should be permitted or not. 10. In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. Such a consideration is, as rightly urged by the plaintiffs counsel hardly relevant for considering the question whether the amendment sought in the present suit should be permitted or not. 10. In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. ( AIR 1977 SC 680 ) it was the plaintiff who was being deprived of the benefit of the admission made by the defendant in the written statement filed earlier and by the proposed amendment, an entirely new case was being set up by the defendant. This is how the Supreme Court viewed the facts by observing (in paragraph 10 of the report) that : "It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admission 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. In Haji Mohammad Ishaq Wd. v. Mohamed Iqbal and Mohamed Ali & Co. AIR 1978 SC 798 ) the plaintiff had succeeded before the trial court on the basis that the goods had been sold to the defendant through one Rahim who acted as the defendant's agent and there was a privity of contract established between the plaintiff and the defendant. While the First Appeal against this decree had remained pending in the High Court for about three years, the defendants filed applications for being permitted to amend their written statement and adduce additional evidence. This prayer was eventually disallowed by the High Court. Upholding this order, the Supreme Court said that "the amendment of the written statement sought in appeal was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. It would have brought about an entirely new plea which was never taken in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The High Court rightly rejected all those petitions and we need not mention in any detail the reasons thereof, It is implicit in these observation that on the facts of the case, the Supreme Court felt that permitting amendment at the belated stage at which it was sought by the defendant would prejudice the plaintiff. 12. In Amir Singh v. Om Prakash ( AIR 1978 All. 15 ) this Court refused to interfere with an order made by the court below under section 151, C.P.C. on the ground that it was a discretionary order and even if it be wrong it would not be amenable to the revisional jurisdiction of this court, more so, when there was no jurisdictional error. 13. Similarly, in Chaubey Sushil Chandra v. Raj Bahadur ( AIR 1977 All 259 ) a Division Bench of this court refused to interfere in a First Appeal from a original decree with an order of the trial court declining to permit the plaintiff to amend the plaint for the relief of specific amount admitted by the defendant in a suit by the agent against the principal for accounting because it felt that the amendment sought would change the very nature of the suit and also because a valuable right had vested in the defendant by lapse of time of which he could not be deprived under the garb of amendment particularly when the plaintiff had not been able to show any cause for being allowed to make the amendment. 14. Maitreyee Banerjee v. Prabir Kumar Mukherjee ( AIR 1982 SC 17 ) was a case where the trial court had allowed the amendment of the plaint, which order had been set aside by the High Court on its view that the amendment sought had altered the entire nature of the case and had substituted a new cause of action. 14. Maitreyee Banerjee v. Prabir Kumar Mukherjee ( AIR 1982 SC 17 ) was a case where the trial court had allowed the amendment of the plaint, which order had been set aside by the High Court on its view that the amendment sought had altered the entire nature of the case and had substituted a new cause of action. The Supreme Court, after going thought the amendment prayed for, felt satisfied that the case was not one where the amendment would have worked serious injustice to the defendant and that the High Court should not have interfered with the order in exercise of, its revisional jurisdiction under section 115 C.P.C. This is what the Supreme Court said : "The High Court in its power of revision ought not to have interfered in a case like this as no jurisdictional error was involved. This was not a case where the amendment sought was clearly barred by limitation so, as, to cause an irreparable injury to the respondent (defendant)." 15. On the facts of the present case, it is obvious that the applicant is entitled to make the amendment in the written statement in view, in particular, of the stand taken by the plaintiff in this Court. The case of the plaintiff would not be any the worse for him even if the present defendant- applicant is permitted to take the amended plea. The mere fact that a co-defendant may be prejudiced in some other litigation on account of the amendment sought is not really relevant for disposing of the prayer for amendment made in this suit. Courts, it is settled law, are generally liberal in permitting the amendment of pleadings unless any irretrievable harm is caused to the opposing party. Such is not the position in the instant case. 16. In conclusion, the Revision succeeds and is allowed. The order of the learned Civil Judge rejecting the amendment application is set aside. The application shall stand allowed on payment of a sum of Rs. 100/- by way of cost by the applicant- defendant to the counsel for the plaintiff within a month of the first date fixed in the case, after recommencement of the proceedings before the court below, after receipt by it of a copy of this order. I would, however, leave the parties to bear their own costs in this proceeding.