Bhowanipore Gujarati Education Society v. STATE OF WEST BENGAL
1993-05-14
N.K.Mitra
body1993
DigiLaw.ai
JUDGMENT 1. THE opposite parties field Title Suit No. 284 of 1976 in the 4th Court of the learned munsif at Alipore against the petitioner, subsequently re-numbered on transfer to the 3rd additional munsif at Alipore as Title Suit No. 86 of 1984, claiming for the following reliefs :- "(a) A decree declaring that the plaintiffs have been and are Class iii employees; (b) A decree declaring that the decision caused by the defendants declaring the plaintiffs as Class- IV staff is illegal, improper, in valid and inoperative and must be set aside; (c) Ad-interim, temporary and permanent injunction restraining the defendant No. 1 and 3 from giving further effect to the decision dated 3. 10. 75 for demotion of the plaintiffs to Class- IV; (d) Mandatory injunction directing status-quo ante, before the date of taking decision for demotion namely; (e) Costs; (f) Such other and further relief/reliefs as the plaintiffs may be found entitled to." 2. THE opposite parties, in paragraph 1 of the plaint, which is quoted below, had stated inter alia, that they were working as "laboratory assistants" under the defendant No. 1 in the suit. "1. That the plaintiffs who are all moderately educated (Higher secondary Passed or with higher educational achievements) were recruited and appointed by the defendant No. 1 for technical jobs in the Science Laboratory of the Collee under the defendant No. 1, on a different dates in the capacity of Laboratory Assistants to help the students in the laboratory work. " The defendant Nos. 1 and 3 namely, the petitioners, contested the suit by filing their joint written statement denying and disputing the allegations made in the Plaint. In paragraph 8 of the written statement it was stated inter alia that the statements contained in paragraphs 1 to 4 of the Plaints were substantially correct. Subsequently, the petitioners filed an application for amendment of the written statement wherein it was stated inter alia, that the plaintiffs/opposite parties were appointed as "laboratory Attendants" and not "laboratory Assistants" as alleged in the plaint, and due to oversight, such fact was not incorporated in the written statement, and prayed for addition of the following sentence in paragraph 8 of the written statement:-The plaintiffs were appointed as laboratory attendants" and not "laboratory assistants" as stated". The said application although was opposed by the opposite parties, was ultimately allowed by the learned munsif on 27. 8.
The said application although was opposed by the opposite parties, was ultimately allowed by the learned munsif on 27. 8. 84, against which, the opposite parties moved a revisional application in this Hon'ble Court, upon which, a Rule being C. R. No. 3224 of 1984 was issued, which was ultimately made absolute by Mohitosh Majumder, J. on 29th August, 1991 inter alia, with the observations that the aforesaid application for amendment should be heard do novo by the trial court. Thereafter, the learned munsif by his orders No. 120 and 127 dated 4. 8. 92 respectively, rejected the petitioner's said application for amendment, holding inter alia, that an amendment, which is a direct negation- of a party's own admission in pleading, cannot be allowed and relied upon a decision of the Delhi high Court in AIR 1987 Delhi 177, to hold that a written statement cannot toe amended to withdraw admission made therein. The teamed munsif further held that the whole case based on the ground that the plaintiffs were "laboratory Assistants" and if the defendants were allowed to amend tike written statement as prayed for, 'then the proposed amendment would do injustice to the plaintiff. The said two orders are the subject matters of challenge in the present revisional application. It is contended inter alia, by the counsel appearing on behalf of the petitioner, that the amendment as sought for. should have been allowed by like learned munsif instead of rejecting the same, inasmuch as, the imposed amendment if allowed, would not change the front of the defence of the defendants/in any way, nor it would amount to withdrawal of any alleged admission made by the defendants in their written statement. Secondly, since it is specifically stated in the application for amendment, that due to oversight it was not stated in the written statement that the plaintiffs were "laboratory Attendants". Such statement was quite sufficient to explain the reason for which such amendment was sought for. Lastly, even assuming out admitting that the defendants had made certain admission in paragraph 8 of the original written statement and by the proposed amendment they sought to withdraw the same, sufficient explanation had been given in such application for withdrawing such alleged admission, and it is not unknown in law, that even an admission can be withdrawn if the reasons for such withdrawal are well explained.
Moreover, defendants are also permitted under the law to take contradictory pleas in the written statement. 3. MR. De, learned counsel appearing on behalf of the opposite parties however, contends inter alia, that by the proposed amendment the admission made by the defendants was sought to be withdrawn, there by changing the front of their defence, which is not permissible in law and no cognent reason has been placed before this Hon'ble Court in support of such amendment. 4. A large number of cases have been cited at the Bar namely, AIR 1957 Supreme Court 363 : AIR 1977 Supreme Court 680 : AIR 1983 supreme Court 462; AIR 1977 Calcutta 333 ; 93 CWN 631; AIR 1993 calcutta 25. An admission is the best piece of evidence that can be relied on by the other party, and though not conclusive is decisive of the matter, unless successfully withdrawn or proved erroneous. This principle of law has been enunciated again and again by the Supreme Court and reference may be made to the decisions of that Court in Narayan Bhagwantrao gosavi Bilajiwale vs. Gopal Vinayak Gosavi and others in AIR 1960 supreme Court 100; Mahendra Manilal Nanavati vs. Sushila Mahendra nanavati in AIR 1965 Supreme Court 364; Basant Singh vs. Janki Singh and others in AIR 1967 Supreme Court 341, Bharat Singh and others vs. Mst. Bhagirathi in AIR 1966 Supreme Court 405 and Biswanath Prasad and others vs. Dwarka Prasad and others in AIR 1974 Supreme Court 117. Although, an admission is not generally allowed to be withdrawn and much depends on the facts of each case, yet effect of an admission in the pleading, made inadvertently or erroneously in ignorance of law, due to the fault of the learned Advocate, can be taken away by amendment. An admission in the written statement can be withdrawn by amendment, if sufficient cause is shown. However, when the effect of amendment is to wipe off an admission made in the original pleading and is mala fide, such amendment cannot be allowed. Amendment seeking to introduce a new case, and to make out a new claim, and to negative admission already made in the written statement, cannot be allowed. Reference may be made to the decision of the Supreme Court in M/s. Modi Spinning and Weaving mills Co. Ltd. and Anr. vs. M/s. Ladha Ram and Co.
Amendment seeking to introduce a new case, and to make out a new claim, and to negative admission already made in the written statement, cannot be allowed. Reference may be made to the decision of the Supreme Court in M/s. Modi Spinning and Weaving mills Co. Ltd. and Anr. vs. M/s. Ladha Ram and Co. in AIR 1977 Supreme court 680; and also to the decision of this Hon'ble Court in Biva's Private ltd, vs. West Bengal Khadi and Village Industries Board in AIR 1977 calcutta 333 and Bhuramal Agarwalla vs. Samla Dalurband Coal Co. (P)Ltd. and others in (1977) 2 CLJ 310 = 82 CWN 1. A contrary view, however, has been taken in the case of Baidyanath Dey vs. P. K. Bose in 83 CWN 621. 5. HOWEVER, amendment of written statement stands on a different footing from that of a plaint. Amendment to clarify certain points in the original written statement is permissible. Crucial test being, whether what the defendant avers is true or not, inadvertent mistake in written statement cannot be permitted to continue, even when on the basis of the contradiction in written statement, argument has already been advanced. 6. IN such a situation, amendment may be allowed by compensating plaintiff with costs. In a case, where by way of amendment in written statement, a plea inconsistent with earlier plea is sought to be raised, the Court should be liberal to allow such amendment, if it finds that the earlier admission was made by mistake. However, when the earlier statement is found to be made not by mistake, and the party deliberately sought to change its mind by introducting amendment in the written statement, such amendment should be refused. Lastly, if the other side by the proposed amendment is not taken by surprise and if the proposed amendment does not totally change the front of the defence of the defendant, the amendment of the written statement as sought for, may be allowed. In the present case, the plaintiff/opposite parties in paragraph 1 of the appelant had stated inter alia, that they were all recruited and appointed by the defendant No. 1 for technical jobs in the science laboratory of the college in the capacity of "laboratory Assistants" to help the students in the laboratory work.
In the present case, the plaintiff/opposite parties in paragraph 1 of the appelant had stated inter alia, that they were all recruited and appointed by the defendant No. 1 for technical jobs in the science laboratory of the college in the capacity of "laboratory Assistants" to help the students in the laboratory work. In paragraph 2 of the plaint the plaintiffs stated inter alia, that the defendant No. 1 was the Principal of the College recognised by the Education Directorate under the defendant No. 2 and it was situated at 5, Elgin Road, Calcutta, 20 where the plaintiffs were employed. In paragraph 3 and 4 of the plaint the plaintiffs had stated inter alia, that the jobs entrusted to the plaintiffs were of high skilled nature, they had to handle scientific instruments of all descriptions, chemicals, salts, etc. and also were to assist the science students of the degree classes and they were required to have sufficient knowledge in English etc. In paragraph 8 of the written statement, the defendants had stated inter alia, that the statements contained in paragraphs 1 to 4 of the plaint were substantially correct. By the proposed amendment the defendants only sought to add one sentence at the end of the said paragraph 8 to the effect that the plaintiffs were appointed as "laboratory Attendants" and not "laboratory Assistants" as stated in the plaint the plaint. In my view, the proposed amendment is in no way any attempt made by the defendants to withdraw any alleged admission made by the defendants in paragraph 8 of the written statement. In the said paragraph 8 the defendants stated that the statements made in paragraph 1 to 4 of the plaint woe substantially correct, meaning thereby, according to me, that such statements were more or less correct, and it does not mean that by such statements the defendants had admitted each and every word of the said paragraphs 1 to 4 of the plaint. By the proposed amendment, the defendants have not in any way sought for withdrawal of their statements made in paragraph 8 of the written statement, but merely sought to add one line clarifying the status of the plaintiffs and by such proposed amendment, the defendants in no way sought to change the front of their defence.
By the proposed amendment, the defendants have not in any way sought for withdrawal of their statements made in paragraph 8 of the written statement, but merely sought to add one line clarifying the status of the plaintiffs and by such proposed amendment, the defendants in no way sought to change the front of their defence. Moreover, even assuming, that the defendants by the proposed amendment of the written statement, sought to withdraw their admission, if any, made in respect of paragraph 1 of the plaint, they had given reasons for such withdrawal in their application for amendment, by stating inter alia, that due to oversight it was not stated in the written statement that the plaintiffs were "laboratory Attendants" and not "laboratory Assistants" as alleged in the plaint and according to me, it amounts to sufficient explanation given for withdrawing any alleged admission made by the defendants in their written statement in respect of paragraph 1 of the plaint. Moreover, I have already observed, that if it is found, that any statement was admitted by mistake in the written statement, such mistake cannot be allowed to continue and can be rectified by way of amendment. Lastly, even if the proposed amendment is allowed, the plaintiffs would not be taken by surprise at all, neither their rights would be in jeopardy, as in that case, the Court is only to see what are their actual status. Thus in any way, the trial court should have allowed the amendment of the written statement as sought for by the defendants, instead of rejecting the same by the impugned orders. Accordingly, the orders under challenge are set aside and the application for amendment of the written statement filed by the defendants stands allowed and the said amendment should be incorporated in the original written statement. 7. SO far as the decisions cited at the Bar as referred to above are concerned, none of the said decisions, in my view, goes against the observations made hereinbefore regarding the principles to be followed while allowing amendment of written statement, particularly regarding withdrawal of any alleged admission made in the written statement. 8. THE revisional application accordingly succeeds without any order as to costs. Let this order be communicated to the trial court forthwith and the trial court is now directed to proceed with the suit in accordance with law. Application allowed.