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1996 DIGILAW 52 (GAU)

Chongtham Gulamani Singh v. Koijam Ibotomi Singh

1996-03-26

N.SURJAMANI SINGH

body1996
Judgement This revision petition under Section 115 of the Code of Civil Procedure arises from the order dated 2nd March, 1996 passed by the learned Munsiff, Imphal, Manipur in Judicial Misc. Case No. 32/95/ 138 (A)/98 (Land reference C.A. No. 5 of 1995) by which the prayer for amendment of the written statement made by the defendant was allowed. 2. Heard Shri L. Nandakumar Singh, learned senior counsel for the petitioner as well as Shri N. Kerani Singh, learned senior counsel for the respondent. 3. At the very outset Shri L. Nandakumar Singh, learned senior counsel for the petitioner submits that a material irregularity has been committed by the learned Munsiff, Imphal while passing the impugned order dated 2-3-1996 in the above Judicial Misc. Case No. 32 of 1995 allowing the prayer for amendment of the written statement inasmuch as the learned Munsiff allowed the defendant to displace the plaintiff completely from admission made by the defendant in his written statement. In other words, the amendment of the written statement displace the plaintiff petitioner from admission made by the defendant in his written statement. For better appreciation in the matter, the petition for amendment filed by the defendant is hereby reproduced, rather quoted as below : "IN THE COURT OF THE DISTRICT JUDGE: MANIPUR EAST. JUDICIAL MISC. CASE NO. OF 1995 Ref:- C.A. No. 5 of 1995 Shri Chongtham Gulamani Singh, Appellant/O.P. v. Shri Koijam Ibotombi Singh, Respondent/ Petitioner. Application on behalf of the respondent / defendant for allowing amendment of the written statement dated 19-8-1993 filed in the Original Suit No. 7 of 1993. Most respectfully, 1. That, the petitioner is the respondent in the above referred civil appeal defendant in Original Suit No. 7 of 1993. 2. That, during the pendency of the present appeal on minute persual of the written statement it was found that some inconsistent statement have been made by the Respondent in his written statement through bonafide mistake and also that some material facts of the case have been left behind to plead in his written statement. The respondent/ petitioner now desires to amend his written statement in the following manner. 3. That, the amendment sought for will not change the nature of the suit rather the amendment will help the Court in the just determination of the suit / appeal. The respondent/ petitioner now desires to amend his written statement in the following manner. 3. That, the amendment sought for will not change the nature of the suit rather the amendment will help the Court in the just determination of the suit / appeal. PROPOSED AMENDMENT: (i) In para No. 2 of the written statement the last part beginning from the word "the plaintiff" up to the ending word "paras" are to be deleted. (ii) In para No. 4(page No. 4) at line No. 15th and 16th the clause "a part of which the plaintiff is now occupying as trespasser" is to be deleted and the following words are to be inserted at its place "which has been standing unused for the last 3/4 year" Again in the same para from the word "The plaintiff in the 22nd line till end of para is to be deleted. iii) In the case para a sub-para is to be added as under :- "The defendant after purchasing the land stated in para No. 3 above, took possession of the suit-land on the date of purchase and started construction work of a multi storied pucca shop cum residential building in July, 1993 by demolishing the old wrecked katcha set inside the suit land. " 4. That, the amendment sought for will not cause any prejudice to the plaintiff/ appellant. In the above facts and circumstances, it is therefore, prayed your honour be pleased to allow amendment of the written statement, for the ends of justice. Signature of the Respondent/ Defendant." Dated, Imphal the 16th Sept. 1995. Verified that the above statements are all true to the best of my knowledge and no fact has been concealed therein. Signature of the Respondent/ Defendant." Dated, Imphal the 16th Sept. 1995. 4. Shri Singh further submits that this amendment petition was filed in the Court of the District Judge, Manipur East during the pendency of C.A. No. 5 of 1995 long after the very date of the filing of the written statement. The written statement of the defendant was filed on 19th August, 1993. 5. On the other hand, Shri N. Kerani Singh, the learned senior counsel for the respondent/defendant contended that the land which the petitioner-plaintiff claimed as owner thereof is covered by C. S. Dag No.3656 of Sheet No.18 Imphal Municipality situated at Paona Bazar. The written statement of the defendant was filed on 19th August, 1993. 5. On the other hand, Shri N. Kerani Singh, the learned senior counsel for the respondent/defendant contended that the land which the petitioner-plaintiff claimed as owner thereof is covered by C. S. Dag No.3656 of Sheet No.18 Imphal Municipality situated at Paona Bazar. He further submits that the boundaries of the land i.e. the suit land given in the plaint is the boundary of the defendants land covered by Dag No. 3643/3856. Therefore, the learned Munsiff Committed no illegality while passing the impugned order allowing the amendment of the written statement of the defendant. Shri N. Kerani Singh, learned counsel for the respondent-defendant referred to a case between Akshaya Restaurant, Appellant v. P. Anjanappa, Respondents reported in AIR 1995 SC 1498 in which the Apex Court held that even the admission can be explained and even inconsistent pleas could be taken in the pleadings by way of application for amendment in the subsequent stage of the case. 6. In reply, Shri L. Nandakumar Singh, learned senior counsel for the petitioner referred to a case between M/s. Modi Spinning and Weaving Mills Co. Ltd. v, M/s, Ladha Ram and Co, reported in AIR 1977 SC 680 in which their Lordships of the Supreme Court held that the application for amendment seeking to displace the plaintiff completely from admissions made by the defendants in written statement cannot be allowed because if such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. In paragraph 2 of the written statement, the defendant admitted the fact that the plaintiff has been occupying as trespasser in a portion of a katcha building constructed in the above land of the defendant. In paragraph 4 of the written statement the defendant also admitted the fact that the plaintiff is illegally occupying the northern portion of the said building as trespasser against the consent and protest of the defendant. In paragraph 4 of the written statement the defendant also admitted the fact that the plaintiff is illegally occupying the northern portion of the said building as trespasser against the consent and protest of the defendant. The defendant desires to make new pleadings by way of amendment and, accordingly, pleaded in the petition for amendment that "the defendant after purchasing the land stated in No. 3 above, took possession of the suit on the date of purchase and started construction work of a multistoried pucca shop cum residential building in July, 1993 by demolishing the old and wrecked katcha set inside the suit land." 7. It is well settled principles of law that even the inconsistent plea can be explained or can be pleaded by way of amendment. But the effect of substitution or deletion of certain admitted facts from the pleadings in order to displace the plaintiff completely from such admission made by the defendant in the written statement is not permitted under the law. 8. I have carefully perused the relevant records as well as the decisions of the Apex Court reported in AIR 1995 SC 1498 and also AIR 1977 SC 680 . After proper application of my mind in this case, it is a real case where the defendant is seeking to displace the plaintiff; completely from the admission made by him in his written statement. Therefore, the learned Munsiff committed material irregularity and illegalities while passing the impugned order. For the reasons stated above, the impugned order dated 2nd March, 1996 is set aside. The petition is allowed. No. costs. Let a copy of this order be communicated to the Learned Munsiff, Imphal, Manipur. Petition allowed.