Research › Browse › Judgment

Himachal Pradesh High Court · body

1997 DIGILAW 355 (HP)

UNION OF INDIA v. MASTIA

1997-09-04

P.K.PALLI

body1997
JUDGMENT P.K. Palli, J.: Arguments on merits have been heard at the admission stage itself. The record of the learned trial Court is also available. This revision petition is, thus, proposed to be disposed of finally on merits at the admission stage itself. 2. This revision petition is directed against the order passed by the learned trial Court whereby application under Order 6 Rule 17 of the Civil - Procedure Code moved by the petitioners/ defendants seeking amendment to the written statement, stands rejected. . 3. The suit claiming decree for permanent prohibitory injunction filed by the plaintiffs/respondents is pending before the learned trial court at Shimla. The plaintiffs in the said suit have claimed a right of passage to pass through the land in question in order to go to their villages which fall on the other side of the land in question. - . . 4. The State of Himachal Pradesh acquired land bearing Khasra Nos.44 and 46/41 for the purposes of installing a high power relay transmitter of All India Radio. In paragraph 4 of the plaint it has been alleged by the plaintiffs that the passage to the villages, named therein, passes through the aforesaid Khasra numbers which are now owned by the Government of India, immediately next in this very paragraph it has been said that the passage thereafter enters in the land comprising Khasra No.47/41 which is owned by plaintiffs No. 1 and 2 and thereafter it passage through the land comprising Khasra No. 45/40. The said passage is alleged to be in the use of the plaintiffs since times immemorial. 5. In the written statement as originally filed by the defendants, it has been stated in paragraph 2 that the common Kacha path is admitted to be in. existence and the same is further admitted to be passing through the land1 in possession of the defendants. In para 3 of the written statement the common Kacha1 path is further admitted to be in existence as well as in the use of the plaintiffs and that they have not been stopped at any stage by the defendants. The defendants further add that the path is wide open that even a Car can easily pass through the said path and there is no question of closing the said path as alleged by the plaintiffs. 6. The defendants further add that the path is wide open that even a Car can easily pass through the said path and there is no question of closing the said path as alleged by the plaintiffs. 6. Interestingly, in para 4 it has been pleaded by the defendants that though there is a Kacha path which is being used by plaintiffs No. 1 and 2, yet it is denied that the same is used by the villagers as mentioned by the plaintiffs. The defendants further admitted that the common Kacha path was being used , and is still used to the villagers including plaintiffs No. I and 2 in the same manner as they were using earlier. It is also admitted in the written statement that the re-routing of the path has been done in such a way that there is no interruption or obstruction to the use of the said Kacha path in. any manner what-so-ever. 7. The case was at the stage of recording evidence of the defendants when an application under Order 6 Rule 17 of the Civil Procedure Code came to be filed by them. In the application the defendants have stated that as a matter of fact the Kacha path as alleged by the plaintiffs does not find mention in the revenue record. It is further said that prior to acquisition it was vacant forest land and after the installation of the high power transmitter station on the acquired land, internal fencing has been raised and external fencing is now being proposed to be raised. In para 2 of the application the defendant have now sought to plead that to allow outsiders to have, passage through the sensitive installation can result in risk to life and property of (he person who passes through this area in ease he comes in contact with the transmitter installation he can suffer a loss of life and property. Prayer was thus made to permit the defendants to carry out necessary amendments in paras 2, 3.4,5, and 6 of the written statement filed by them earlier. 8. Strangely enough, in the application nothing has been said as to what amendment is sought to be pleaded. However, the proposed amended written statement is on record: and in para 2 it is sought to be pleaded that there was no path existing over the suit land prior to the acquisition. 8. Strangely enough, in the application nothing has been said as to what amendment is sought to be pleaded. However, the proposed amended written statement is on record: and in para 2 it is sought to be pleaded that there was no path existing over the suit land prior to the acquisition. It is further sought to be added that simply passing through a vacant land ones own convenience docs not grant him case in entry right by way of prescription/ The defendants have farther come out with the pica that they cannot allow the plaintiffs to have passage through the fenced area keeping in view the security point. - 9. In para 3 it is now sought to be substituted that there was no path over the suit land and, therefore, the question of providing any path docs not arise. Towards the similar effect the averments are sought to be made in the other paragraphs. It is this application which has been dismissed by the learned trial Court. 10. Mr. PA. Sharma learned counsel appearing for the defendants/petitioners, contends that the law of amendment has undergone a sea- change over the years and the parties are permitted to raise even inconsistent and contradictors pleas, it is further sought to be urged that the delay in applying for amendment is no ground for rejecting the application. It is also being argued that even if it is taken to be a withdrawal of the admission made earlier, the party can be permitted to do so in die given set of circumstances. Lastly, it is being urged that the proposed amendment is absolutely necessary for the just decision of the case and the learned trial Court has misused it jurisdiction in declining the amendment sought by the defendants. In further’ support of the contention raised, Mr. Sharma relies upon the observations made by the apex Court reported in AIR 1995 SC 1498. (Akshaya Restaurant vs P. Anjanappa and another): AIR 1983 SC 319, Haridas Aildas Thadani and others vs. Godrej Rustom. Keramni); and AIR 1983 SC 462, (Panchdeo Narain Srivastava vs. Km. Jyoti Sahav anil another). 11. There cannot be any second opinion in respect of the law laid down in these judgments. The court should be extremely liberal in granting the prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. Keramni); and AIR 1983 SC 462, (Panchdeo Narain Srivastava vs. Km. Jyoti Sahav anil another). 11. There cannot be any second opinion in respect of the law laid down in these judgments. The court should be extremely liberal in granting the prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. There is farther no doubt that where the Court finds that in order to effectively adjudicate upon the dispute between the parties the amendment is absolutely necessary, the High Court ought not to interfere in its revisional jurisdiction. 12. In AIR19X8 Punjab & Haryana 53.(Surjeet Singh vs. Kartar Singh & anr.), it has been held that an application for amendment so as to withdraw from any admission of fact cannot be allowed if in the context of facts brought on record the applicant has no scope to. successfully withdraw from the admission so made by him. Towards the similar effect are the observations made in AIR 1988-Punjab & Haryana 43, (Dewan Chand vs. Kalyan Doss & Ors.\ It is further too well-settled that an admission made by a party can be withdrawn and explained away in the given set of circumstances. 13. It need not be emphasized that each case has to be weighed on its peculiar facts and pleadings while allowing an application for amendment. 14. In the present -case, the plaintiffs are seeking a decree of permanent prohibitory injunction that the defendants be restrained from disturbing the plaintiffs in the use of the passage which exists and passes through the land in question. It is further averred by the plaintiffs that they along with the residents of other villages have a right of user through the said passage from time immemorial. 15. It is further said by the plaintiffs that me defendants have now started erecting poles over .the said passage with the purpose to put fencing all around and such an act of the defendants will deprive the plaintiffs from using the passage which is the only one being used by them to go to their respective villages and fields. 16. It is further said by the plaintiffs that me defendants have now started erecting poles over .the said passage with the purpose to put fencing all around and such an act of the defendants will deprive the plaintiffs from using the passage which is the only one being used by them to go to their respective villages and fields. 16. The defendants in their written statement filed earlier, notice of which has already been taken above in the earlier part of this judgment, have in no unequivocal terms admitted and to some extent conceded the picas raised by the plaintiffs and have admitted the existence of the passage as well as its use by the plaintiffs and other villagers. 17. In fact the defendants have to blame themselves only for the inartistically drawn up written statement In one paragraph the existence of the path is admitted but its user is denied, in the next paragraph the user is also admitted but only by the plaintiffs and not by the other villagers, yet, more interestingly, in the next paragraph the user by the other villagers is also admitted. 18. In my considered opinion, important admissions of fact have been made by the defendants in the written statement and having become wiser, after the plaintiffs have concluded their evidence, an effort is sought to be made to get out of the situation and difficulty in which the defendants have landed themselves, it is not a case where inconsistent or contradictory pleas arc sought to be raised as projected by Mr. P.A., Sharma. It is a case where the defendants aim to withdraw the admissions of fact made by them in the written statement. 19. If admissions of fact arc sought to be withdrawn, there can be no dispute that the same can be permitted to be withdrawn in the given set of circumstances for which a case is required to be made by the party seeking to withdraw the admissions of fact. It is not the case of the defendants here. It appears to be a crude attempt on the part of the defendants to withdraw important admissions of fact made by them through the proposed amendment. 20. I am further of the considered opinion that such kind of admission is very material to adjudicate and decide the controversy in question and cannot be permitted to be changed by way of amendment. 20. I am further of the considered opinion that such kind of admission is very material to adjudicate and decide the controversy in question and cannot be permitted to be changed by way of amendment. . 21. - The learned trial court appears tote absolutely correct in observing that by way of proposed amendment, the defendants desire to change their entire stand as projected by them earlier in the written statement filed by them. it is further painful to observe that even the application moved under Order 6 "Rule 17 of the Civil Procedure Code is not in consonance with the law as it completely lacks averments as to what type of amendment is proposed by the defendants 22. Counsel appearing for the Central or State Government in important cases are expected to be very careful in drafting of the pleadings. Every meticulous care should be taken while drafting the pleadings which should be based on true and. correct facts which should be further based on ground realities and after careful scrutiny of the record. Care should also be taken in respect of the rules and procedure as well as the relevant law on the point. Ill-drafted pleadings, as in the present case, can land the Central Government as well as the State Governments in an extremely difficult situation. 23. In view of what has been said above, there is absolutely no scope of interference in the present revision petition and the application for amendment by the defendants stands rightly rejected. The revision petition is dismissed -with no order as to costs. The record of the learnedtrial-Court is ordered to be sent back forthwith.