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2000 DIGILAW 115 (HP)

ANIL KUMAR v. SHAKUNTLA DEVI

2000-05-23

KAMLESH SHARMA

body2000
JUDGMENT Ms. Kamlesh Sharma, J.—Petitioner is the defendant, whereas, respondents are the plaintiffs and they will be referred to as such in this civil revision. 2. The plaintiffs have filed a suit for partition of the suit property on the ground that they are co-owners in possession in equal shares but the defendant is deriving the benefit out of the suit property. The defendant resisted the suit by filing written statement alleging that father of the parites Badri Prashad, in a family arrangement, few days before his death, had granted irrevocable licence of the suit property to him which was in a dilapidated condition and was re-built by him. By filing an application under Section 6, Rule 17, Code of Civil Procedure, the defendant intends to take an alternative plea that he has been in continuous exclusive possession of the suit property as owner openly and adversely to the plaintiffs in denial to their title. The plaintiffs opposed the proposed amendments on the ground that these are so inconsistent and adverse to the earlier plea and if these are allowed, the case of the plaintiffs will be badly prejudiced inasmuch as the admission made by the defendant that the suit property was given to him as a licensee will stand withdrawn. The stand taken by the plaintiffs in opposition to the proposed amendment found favour with the Sub Judge 1st class and the application has been dismissed by order dated 14.10.1999 which has been assailed in the present revision petition. 3. This Court has heard learned Counsel for the parties and gone through the record. 4. Learned Counsel for the defendant has argued that as per the latest legal position, admissions can be explained and inconsistent pleas can be taken in the written statement by way of amendment of the written statement, though in the present case by the proposed amendment no such admission is withdrawn, which will prejudice the case of the plaintiffs in any manner by dislodging them from their case. On the other hand, learned Counsel for the plaintiffs has supported the impugned order. Learned Counsel for the parties have cited catena of judgments of Supreme Court on the point of amendment of the written statement which are being referred to hareinafter. 5. In M/s. Modi Spinning & Weaving Mills Co. On the other hand, learned Counsel for the plaintiffs has supported the impugned order. Learned Counsel for the parties have cited catena of judgments of Supreme Court on the point of amendment of the written statement which are being referred to hareinafter. 5. In M/s. Modi Spinning & Weaving Mills Co. Ltd. arid another v. M/s. Ladha Ram & Co., AIR 1977 SC 680, learned judges have held that defendants cannot be allowed to change completely the case originally made in paragraphs 25 and 26 of the written statement and substitute entirely a different and new case in paragraphs 25 and 26 of the amended written statement. The case originally set up by the defendants was that agreement dated 7th April, 1967 was applicable to those transactions in which the plaintiff works as stockist-cum-distributor of the defendants and not to other transactions in which the plaintiff acted as principal. In the alternative the case of the defendants was that the plaintiff was only their agent and not entitled to claim any damages from them for non-supply of its own goods for sale through the plaintiff. Lateron after about three years the defendants proposed amendments that by virtue of the agreement the plaintiff was appointed a mercantile agent and acted in that capacity in placing the orders on the defendants and denied the allegations that the plaintiff had placed orders with the defendants as a purchaser. The defendants also alleged that the plaintiff throughout acted as an agent of the defendants and had no locus-standi to file the suit. The trial Court had rejected the application for amendment by stating that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law." The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side. The Supreme Court has held the order of trial Court as correct. 6. In Jagan Nath (deceased) Through LRs. v. Chander Bhan and others, (1988) 3 SCC 57, while reiterating the law laid down in M/s. Modi Spinning & Weaving Mills Co. The Supreme Court has held the order of trial Court as correct. 6. In Jagan Nath (deceased) Through LRs. v. Chander Bhan and others, (1988) 3 SCC 57, while reiterating the law laid down in M/s. Modi Spinning & Weaving Mills Co. Ltd. (supra) the learned Judges of Supreme Court have held that once the tenant had admitted in the written statement that he was a tenant in the property in question he could not subsequently be allowed to wriggle out of this situation and withdraw the admission as it would take away valuable right of the other side and altogether a new plea would be taken, which cannot be permitted. In Akshaya Restaurant v. P. Anjanappa and another, 1995 Supp (2) SCC 303, the learned Judges of Supreme Court have held that "it is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings". In the case before the Supreme Court the amendment in the written statement was approved whereby even after taking a definite stand in the written statement that respondent had entered into an agreement of sale the defendant was permitted to take opposite stand that the respondent had entered into an agreement for developmnt of the land for mutual benefit of the parties on the ground that since the terms of the agreement are subject matter in the suit, it would be open to the parties while adducing the evidence to explain terms and conditions of the covenant and the circumstances in which they came to be executed. In Basavan Jaggu Dhobi v. Sukhandan Ram Dass Chaudhary (dead) Through LRs and others, 1995 Supp (3) SCC 179, the learned Judges of the Supreme Court have set aside the order passed by the courts below holding that it is open to the defendant to amend his written statement under Order 6, Rule 17, Code of Civil Procedure, by taking a contrary stand than what was stated originally in the written statement but the only bar is that by contrary stand or contradictory stand cause J of action is not in any manner affected, as in the case of plaintiff also amendment of the plaint which introduces a new cause of action cannot be permitted. These principles have been reiterated in Heera Lal v. Kalyan Mal and others, (1988) 1 SCC 278, that an amendment in the written statement cannot be allowed which will dislodge the plaintiffs case. 7. Applying the principles laid down in above cited judgments to the facts of the present case this Court is of the view that by taking alternative plea that defendant became the owner by way of adverse possession he has not withdrawn any admission which would dislodge or dis-place the plaintiffs case that they are owners in possession in equal shares, in any manner. No doubt, the original plea of irrevocable licence and the alternative proposed plea of owner by way of adverse possession are inconsistent and mutually adverse to each other but thereby the cause of action on which the plaintiffs have filed their suit is not affected, hence their case is not prejudiced in any manner. In this view of the matter the order of Sub Judge 1st Class does not stand judicial scrutiny and is set aside and the application of the defendant under Order 6 Rule 17, Code of Civil Procedure, for amendment of the written statement is allowed. The trial Court is directed to proceed with the trial of the suit in accordance with law. Records be sent back to the trial Court without any delay. The parties are directed to appear before the trial Court on 19.6.2000. Revision allowed.