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1997 DIGILAW 262 (KER)

Pavithran v. Narayanan

1997-07-11

P.V.NARAYANAN NAMBIAR

body1997
Judgment :- P.V. Narayanan Nambiar, J. The suit, O.S. No. 803 of 1987 on the file of the Principal Munsiff s Court, Cherthala is one for declaration of title and possession of the plaintiffs over the suit property which is described as 35 cents in Survey No. 241/5 of Kodamthuruth Village. The first defendant in the suit is the Sakhayogam and the third defendant is the President of the Sakhayogam. A written statement was filed disputing the title and possession of the plaintiffs. There is clear admission in the written statement that the defendants are in possession of only 25 cents excluding the 35 cents shown in the plaint schedule. 2. The third defendant filed LA. No. 2754 of 1991 under 0.6 R.17 CPC for amendment of the written statement. A statement was sought to be incorporated in the written statement that the defendant is in possession of 60 cents of property which includes the 35 cents shown in the plaint schedule. The statement that he obtained possession of 25 cents excluding the 35 cents shown in the plaint schedule is sought to be deleted by the amendment. It is stated in the affidavit filed in support of the application that the mistake in the written statement was committed by the lawyer who drafted the same. 3. The court below dismissed the application in view of the dictum laid down in the decision reported in Modi Spinning & Weaving Mills v. LadhaRam & Co., AIR 1977 SC 680. The revision is filed challenging the order in I.A. No. 2754 of 1991. 4. It is stated in Modi Spinning & Weaving Mills v, Ladha Ram & Co., AIR 1977 SC 680 that the defendants cannot be allowed to change completely the case pleaded originally in the written statement and substitute an entirely different and new case. It is also stated therein that though inconsistent and alternative pleadings are permissible to be made by the defendants, an amendment which is sought to displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed as such amendments, if allowed, will irretrievably prejudice the plaintiff by being denied of the opportunity of extracting the admission from the defendants. 5. 5. Counsel for the revision petitioner argued that the reliance placed by the court below on the decision referred to above was not justifiable in view of the later decision of the Supreme Court and that of various other High Courts from which it could be understood that the decision referred to above is no longer acceptable as good law. Counsel placed reliance on the decision reported in Panchdeo Narain v. Jyothi, AIR 1983 SC 462 in which it has been held that an admission made by a party may be withdrawn or may be explained away and therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The Supreme Court was considering a case where the application for amendment of the plaint was allowed by the trial court for effective adjudication of the dispute which was interfered with by the High Court in revision. The Supreme Court held that such interference by the High Court was not justifiable. It was a case where the plaintiff described himself in the plaint as the son of the uterine brother of one person. Subsequently, he moved an application for amendment of the plaint inter alia seeking deletion of the word 'Uterine' form the plaint. The trial court granted the amendment sought for but the High Court in revision set aside the order granting amendment. In the course of discussion, the Supreme Court stated that procedural law is intended to facilitate and not to obstruct the course of substantive justice. An admission made by a party may be withdrawn- or may be explained away and, therefore, it cannot be said that by amendment, an admission of fact cannot be withdrawn. The Supreme Court clarified that it will be open to the respondents to cross-examine the plaintiff on all points on which the plaintiff can be legitimately cross-examined and the decision would neither bar nor preclude any question that can be legally put to the plaintiff on cross-examination. 6. The Supreme Court clarified that it will be open to the respondents to cross-examine the plaintiff on all points on which the plaintiff can be legitimately cross-examined and the decision would neither bar nor preclude any question that can be legally put to the plaintiff on cross-examination. 6. Counsel for the revision petitioner also placed reliance on the decision reported in Akshaya Restaurant v. P. Anjanappa, AIR 1995 SC 1498 in which it is held that the statement in the written statement that the defendant had entered into an agreement of sale of the suit land with the plaintiff could be amended by modifying the statement that the defendant had entered into an agreement with the plaintiff for development of the suit land. Such an amendment sought for was declined by the trial court, but the High Court allowed the same. On appeal by Special Leave, the Supreme Court confirmed the order of the High Court and dismissed the appeal. It is held in paragraph 5 of the judgment thus: ".... It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under S.115 CPC in permitting amendment of the written statement." 7. The Supreme Court in the decision reported in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary,1995 Supp. (3) SCC 179 held that by way of amendment, even a plea contrary to the original plea in the written statement can be taken and an amendment for incorporating a totally different plea is not barred. In that case, the trial court as well as the High Court refused amendment and the Supreme Court held that the Courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under 0.6 R.17 CPC by taking a contrary stand against what was stated originally in the written statement. It was also held therein that is open to the defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. It was also held therein that is open to the defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. Counsel for the Revision Petitioner also placed reliance on the decision reported in Dileep Singh Mehta v. Mackinnob Mackenzie & Co. Ltd., AIR 1993 Calcutta 25, paragraph 3 of the decision shows that one Dubash admitted that he was the Managing Director of a company during a particular period. He then sought deletion of such a statement from the written statement. In such circumstances, while disposing of the application for amendment, the High Court held that even though the written statement contains such an admission, the same is not a conclusive proof of the Managing Directorship of Dubash, but the defendant would be free to prove at trial other facts which might lead ultimately to a conclusion that Dubash was not a Managing Director, notwithstanding the admission to the contrary in the written statement, allegedly erroneously made. It was also held in the judgment that it was settled law that issues at trial are raised not merely upon the pleadings, but that it is open to raise issues on other relevant documents also. The application of the defendant seeking to erase an admission would also be on record for all times notwithstanding the disposal of the application. So, on the basis of his application, the defendant would be entitled to contend that an issue should arise upon the factual accuracy of the description of Dubash as Managing Director even though an admission, allegedly by mistake, has crept into the written statement in that regard. The Calcutta High Court also considered the question whether prejudice will be caused to the plaintiff if such an amendment is allowed and held thus: "if the admission is erased out today, the plaintiff would for ever be deprived of a valuable possible point at the trial of suit which might, in some way, affect the ultimate result at the hearing of the suit itself. Such a permission to erase an admission is for this reason classed as an amendment which is not necessarily outside the possibility of causing any irreparable prejudice to the other party. Such a permission to erase an admission is for this reason classed as an amendment which is not necessarily outside the possibility of causing any irreparable prejudice to the other party. Such irreparable prejudice would be a possible change in the outcome of the list itself by reason of permission of the amendment." With his observation, the Calcutta High Court refused to pass any order in the application for amendment. 8. In the decision reported in Prasant Chandra Sen v. United Commercial Bank, AIR 1982 Calcutta 555, it has been held that inconsistent claim can be made in the written statement by amendment. 9. Certain judgments of different High Courts which are against the revision petition were also placed for my consideration. The decision reported in Kishan Lai v. Rajan Chand Khanna, AIR 1993 Delhi 1 is one such decision in which it has been held that an amendment which is sought to withdraw an admission made in the written statement and which suffered inordinate delay and motivated by mala fides was rejected basing on the decision reported in Modi Spinning & Weaving Mills v. Ladha Ram & Co., AIR 1977 SC 680. 10. This Court had occasion to consider whether a plea inconsistent with the one taken in an earlier written statement can be allowed to be altered by an amendment and this Court rejected the prayer for amendment on the ground that the application was belated and there was no valid explanation for the omission to take up the plea sought to be incorporated in the original written statement. See the decision reported in Kadisumma v. Abdulrahiman, 1959 KLT 159. In Paru v. Gopalakrishnan Ezhuthassan,1987 (2) KLT 807, this Court held that leave to amend a written statement ought to be granted where the amendment sought for is not inconsistent with the plea taken in the original written statement and where the right of the plaintiff is not defeated by allowing the amendment. The Court also held that amendment setting up a new case totally inconsistent with the original case set up will not be allowed if it is unjust to the opposite party. It is also held therein that the court should be liberal in allowing amendments of written statements than in the case of amendment of plaints. 11. The Court also held that amendment setting up a new case totally inconsistent with the original case set up will not be allowed if it is unjust to the opposite party. It is also held therein that the court should be liberal in allowing amendments of written statements than in the case of amendment of plaints. 11. Counsel for the respondents placed reliance on the decision reported in Krishnaswamy Iyer v. Mathai, 1960 KLT 990 in which it is held that when the defendant has come forward with an amendment that he is entitled to rescind the contract, such amendment will be disallowed if the claim is barred by limitation on the date of application. The court will also consider whether the application is belated and is bonafide. 12. applications for amendment are allowed liberally and it should be so. It is only in extra cases such application should be rejected. Consideration of the Court while dealing with the applications for amendment should be whether the amendment sought for, is allowed, will cause injustice or loss to the other party and whether the amendment is necessary for the purpose of determining the real question in controversy between parties. Though, it is held in the decision reported in Modi Spinning & Weaving Mills v. LadhaRam & Co., AIR 1977 SC 680 that an admission can not be permitted to be taken away by way of amendment, the subsequent decisions of the Supreme Court in Panchdeo Narain v. Jyoti, AIR 1983 SC 462 and Akshaya Restaurant v. P. Anjanappa, AIR 1995 SC 1498 have given a different view contrary to the earlier proposition and without reference to the earlier decision held that even an inconsistent plea and an. amendment by which the earlier admission is sought to be taken away can be allowed. 13. An admission is not conclusive. It can always be rescinded or superseded or even explained away on the ground that the admission was made due to a mistake or for other sufficient reasons. An admission can not be said to be conclusive with regard to the right of parties in respect of immovable property. When an admission could be explained away or can be rescinded or superseded, it can not be said that such admission can not be allowed to be taken away by amending the pleading. An admission can not be said to be conclusive with regard to the right of parties in respect of immovable property. When an admission could be explained away or can be rescinded or superseded, it can not be said that such admission can not be allowed to be taken away by amending the pleading. If an admission can be withdrawn or even explained away in the course of evidence, there is no justification in saying that an admission which is made in the plaint or written statement can not be withdrawn by way of amending the pleadings. In such cases, the inconvenience and loss which might be caused to the opposite party will be considerably less than the inconvenience that will be caused to him if the admission is sought to be explained away or shown to be incorrect in the course of evidence. 14. The procedural law should not stand in the way of substantial justice. Courts should be liberal in allowing applications for amendment of the pleading. In the instant case, valid reasons are given for seeking amendment. It cannot be said that the amendment, if allowed will cause substantial loss or injustice to the plaintiffs. Injustice if at all caused to the plaintiffs, will not be more than the injustice caused to him if the plea sought to be incorporated by way of amendment was taken in the original written statement. The application for amendment cannot be said to be highly belated. Though the suit was filed in December, 1987 and the written statement was filed in June, 1988, the application for amendment was filed on 11.10.1991 before the suit came in the list for trial. 15. In view of the above discussion, I hold that the dismissal of the application for amendment by the Court below is unjustified and so the impugned order is set aside. The application for amendment will stand allowed. It is clarified that it will be open to the plaintiffs to cross-examine the defendant on all points on which he can be legitimately cross-examined even basing on the admission made in the original written statement, this decision should not either bar or preclude any question that can be legally put to the defendant in the course of cross-examination. The revision is allowed as above.