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1997 DIGILAW 911 (RAJ)

Gopal Singh v. Chander Singh

1997-07-30

SHIV KUMAR SHARMA

body1997
Honble SHARMA, J.–This revision arises from the order dated Feb. 26, 1996 of the learned Additional District Judge No. 5, Jaipur City, whereby the application under Order 6, Rule 17 CPC moved by the defendant petitioner (for short the defendant) for amending the written statement was rejected. (2). Brief facts are required to be set out at the out set. The plaintiff non-peti- tioner (for short the plaintiff) instituted a suit for partition between herself and Shri Hari Singh represented by his legal representatives in respect of several properties alleged to have been left by Shri Berisal Singh, husband of the plaintiff. It was pleaded by the plaintiff that the property belongs to Smt. Bhanwar Bai, who was grand-mother of the defendant. However, till recently, the plaintiff as well as the defendant were under the impression that the property came to Smt. Bhanwar Bai under will dated 14.5.1997 executed by Shri Berisal Singh. Before the learned trial court, the suit is still at the stage of service of some of the defendants and for filing written statement. The defendant moved an application under Order 6 Rule 17 CPC seeking amendment of the written statement filed by him by adding necessary aver- ments in respect of existing para 22 of the written statement. It was averred that such averment regarding prior possession and right over the property were already there in paras 15 and 22 of the written statement, but looking to some old document of Samvat 1974 the defendant came to know for the first time that late Shri Berisal Singh had executed document in Samvat 1974 whereby the property was given to Smt. Bhanwarbai for her maintenance. This document was of a date much prior to the date of will. Therefore, the amendment was necessary to further clarify and amplify the averments. The learned trial court dismissed the application vide the impugned order. (3). Mr. This document was of a date much prior to the date of will. Therefore, the amendment was necessary to further clarify and amplify the averments. The learned trial court dismissed the application vide the impugned order. (3). Mr. N.K. Maloo, learned counsel appearing for the defendant criticised the impugned order and averred that the observations made in the impugned order are made wholly without basis in as much as the amendment itself has been sought on the ground of discovery of document in August, 1993 after filing of the written statement on 8.1.1991 and therefore, it was not possible for the defendant to incorporate the averments relating to the said document Mr Maloo learned counsel further contended that the trial court should not have gone into the merits of the case while deciding the application for amendment. If the amendment is necessary to decide the real issue between the parties the amendment should be granted. Mr Maloo further submitted that in the case on hand the plaintiff filed amended plaint on October 31, 1992 i.e. after filing the original written statement on Jan. 8, 1991, therefore the defendant has full right to file amended written statement or fresh written statement even if the amendment in the plaint is formal in nature. Reliance was placed on N.K. Jain Vs. Kanhaiyalal (1), Ajeet Kumar Jain vs. Smt. Urmila Sharma (2), Abdul Rahim vs. Abdul Jabbar (3), Ramchandra vs. Mahendra Singh (4), Usman vs. Sitaram (5), Akshaya Restaurant vs. Anjanappa and another (6) and Radhika Devi vs. Bajrangi Singh and others (7). (4). On the other hand, Shri B.P Agrawal, learned counsel for the plaintiff sup- ported the impugned order and placed reliance on Radhika Devi vs. Bajrangi Singh and others (supra) and State of Rajasthan Vs. lshwar Dass and others (8). (5). I have given my anxious consideration to the rival contentions and carefully perused the record. Indisputably the defendant filed written statement on Jan. 8, 1991 and according to him he discovered some document in August 1993 and on the basis of said document the defendant now wants to explain, clarify and amplify the existing averments. There is no dispute about this fact that the plaintiff filed amended plaint on October 31, 1992. (6). Indisputably the defendant filed written statement on Jan. 8, 1991 and according to him he discovered some document in August 1993 and on the basis of said document the defendant now wants to explain, clarify and amplify the existing averments. There is no dispute about this fact that the plaintiff filed amended plaint on October 31, 1992. (6). The Apex Court in A.K. Gupta & Sons vs. Damodar Valley Corporation ( AIR 1967 SC 96 ) in para 34, indicated thus- ``These observations, again, make it clear that amendment was allowed with respect to a claim which at the time when it was made would have been time barred because that claim could be spelt out of the original plaint which was held to be defectively framed. A defect in the frame of the plaint was not considered sufficient to dis- allow amendment and to dismiss the suit. The amendment of the plaint was necessitated due to clumsy drafting. (7). This Court in Kalyan and Others vs. Hira Lal and Others (1997 (2) WLC 342), after discussing varieties of the Apex Court as well as of this court propounded thus: ``29. The principles deducible from the observation made by the majority of the Honble Judges of the Privi Council and the Supreme Court, are that even the inconsistent pleas can be taken and even the admission can be explained. It is open to a defendant to take even contradicting stands without affecting the cause of action. Such am- endments should not seek to displace the plaintiff completely from the admissions made by the defendants in the written statement. The plaintiff should not be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. Procedural law is intended to facilitate and not to obstruct the cause of sub- stantive justice. The admissions are not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or are untrue. The admissions may be withdrawn or proved erroneous. A defect in the frame of the pleading may be amended. The object of the courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes. (8). The admissions may be withdrawn or proved erroneous. A defect in the frame of the pleading may be amended. The object of the courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes. (8). In Kalyan and others vs. Hiralal and others (supra) the ratio of State of Rajasthan vs. Ishwar Das (supra) relied upon by the learned counsel for the plaintiff was also discussed and the observations made by their Lordships of the Supreme Court in Panchdeo Narain vs. Jyoti (AIR 1983 (70) SC 462), and M/s. Modi Spg. Wvg. Mills vs. Ladha Ram and Co. ( AIR 1977 SC 680 ) were also discussed. (9). In Radhika Devi vs. Bajrangi Singh and others (supra) no step taken by the plaintiff to file application for amendment of the plaint for three years. In that case the gift deed was executed on July 28, 1978 and application under Order 6 Rule 17 CPC was filed on November 11, 1992 seeking declaration that the gift deed was obtained illegally and fraudulently therefore it was ineffective and does not bind the plaintiff. The Apex Court in this case indicated that if the amendment is allows the right accrued in favour of the respondents would be defeated by permitting amendment of the plaint and therefore amendment was disallowed by the Apex Court. But in the case on hand no right had been accrued to the plaintiff and if the amendment is allowed the right of the plaintiff will not be defeated. The defendant only wants to explain the facts already averred in the written statement on the basis of a document discovered by him after filing of the written statement. (10). The learned trial court has not properly appreciated the provisions con- tained in Order 6 Rule 17 CPC as well as the amendment sought by the defendant and I am of the considered opinion that the learned trial court has committed error of jurisdiction in dismissing the application filed by the plaintiff under Order 6, Rule 17 CPC and if the impugned order is allowed to stand it would occasion failure of justice. (11). Consequently, the revision succeeds and is hereby allowed and the impugned order stands set aside. While allowing the application under Order 6 Rule 7 CPC. 1 direct that the defendant shall pay cost of Rs. (11). Consequently, the revision succeeds and is hereby allowed and the impugned order stands set aside. While allowing the application under Order 6 Rule 7 CPC. 1 direct that the defendant shall pay cost of Rs. 1,000/- (one thousand) to the plaintiff. The amended written statement shall be filed within fourteen days from today and record of the trial court be sent back forthwith. The parties are dir- ected to appear before the trial court on August 11, 1997.