Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 245 (PNJ)

Durga Dutt v. Banwari Lal

2001-02-20

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - Shri Durga Dutt petitioner has filed the present revision and it has been directed against the order dated 24.9.1997 passed by Civil Judge (Jr. Division), Narnaul, who allowed the application under Order 6 Rule 17 CPC filed by Banwari Lal plaintiff/respondent. 2. Some facts can be noticed in the following manner :- To begin with, suit No. 1489 of 1993 was instituted at the instance of Banwari Lal plaintiff/respondent for permanent injunction against the defendants namely Bhawani Dutt and Durga Dutt to the effect that they be restrained from interfering into possession, cultivation and use of the suit land measuring 12 marlas gair mumkin house comprised in Khewat No. 165 min, Khatoni No. 213, Killa No. 13//26, situated in village Nangal Kalia, Tehsil Narnaul, as per jamabandi for the year 1990-91. Notice of the suit was given to the petitioner and respondent No. 2, who filed the written statement in which they also raised counter claim. Plaintiff Banwari Lal filed re-joinder to the counter claim. The counter claim was filed on 10.9.1996. The replication was filed on 26.11.1996. Later on Banwari Lal withdrew the suit for one reason or the other and the counter claim of the petitioner continued. It is the case of the petitioner that in the re-joinder to the counter claim since Banwari Lal has not specifically denied the averments of the written statement, therefore, the averments of the written statement shall be presumed to have been admitted and in these circumstances the counter claim of the defendants is bound to be decreed and allowed. When the matter was at the arguments stage, respondent Banwari Lal filed an application under Order 6 Rule 17 CPC and prayed that he may be allowed to elucidate certain matters in the re- joinder filed by him earlier to the counter claim. Notice of the application was given to the petitioner and after hearing the submissions, the learned trial court allowed the application for the reasons contained in paras 5 to 7 of the impugned order dated 24.9.1997, which read as follows:- "5. While opposing the application of the plaintiff the ld. counsel for the defendant has relied upon Charan Singh v. Kulwinder Kaur and another, 1976 Revenue Law Reporter Punjab and Haryana High Court page 365. His Lordship has observed wherein that in amendment of written statement new and inconsistent plea not permissible. While opposing the application of the plaintiff the ld. counsel for the defendant has relied upon Charan Singh v. Kulwinder Kaur and another, 1976 Revenue Law Reporter Punjab and Haryana High Court page 365. His Lordship has observed wherein that in amendment of written statement new and inconsistent plea not permissible. He has also relied upon Narain Auto Agency and another v. M/s Sat Kartar Engineering Works, 1990 PLJ Punjab and Haryana High Court 467, wherein His Lordship has observed that admission made in written statement sought to be withdrawn, defendant cannot be permitted to withdraw his admission as same going to affect case of plaintiff and party cannot be allowed to set up absolutely different case by way of amendment of plea. He has also placed reliance on Jangir Singh v. Mohinder Kaur and others, 1993(2) Punjab Law Reporter Punjab and Haryana High Court 512 and M/s Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s Ladha Ram and Co., AIR 1977 Supreme Court 680. On the other hand, the plaintiff/applicant has placed reliance on Patna Regional Development authority and others. v. M/s Rashtriya Pariyojana Nirman Nigam and others, with M/s Walia Builders v. Rashtriya Pariojna Nirman Nigam and others, 1996(2) Latest Judicial Reports Supreme Court of India page 11, wherein Their Lordships have observed that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. He has also placed reliance on Akshaya Restaurant v. P. Anjanappa and another, 1995(2) Latest Judicial Reports Supreme Court of India 53, wherein Their Lordships held that it is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings by way of amendment. He has also relied upon M/s Mahendra Radio and Television, Meerut and another v. State Bank of India, AIR 1988 Allahabad 257 and Kundeep Singh and another, 1995 PLJ and Haryana High Court Page 13. 6. The perusal of the case file reveals that the present application was filed by the plaintiff under Order 6, Rule 17 CPC seeking to amend the reply to counter claim-cum-replication dated 26.11.1996. 6. The perusal of the case file reveals that the present application was filed by the plaintiff under Order 6, Rule 17 CPC seeking to amend the reply to counter claim-cum-replication dated 26.11.1996. This application has been filed by the plaintiff on 13.8.97 after the defendant has pressed his plea taken in rejoinder of counter claim seeking to decree the counter claim of the defendant on the basis of taking the reply to the counter claim as admitted as the allegations of the fact in the counter claim has not been denied specifically as the same are stated to be not admitted in the pleadings of the plaintiff. The perusal of the reply to counter claim reveals that the plaintiff has simply stated the counter claim is wrong and not admitted and by way of present application, he was sought to amend the reply to counter claim by inserting therein certain lines wherein he wants not to specifically deny the pleadings of the counter claim but also wants to establish his case. It is pertinent to mention here that the plaintiff has already withdrawn his suit and the counter claim of the defenant was ordered to be continued by the court. Keeping in view this background, it is undoubtedly true that as provided under Order 8 Rule 5 every allegation of fact in the plaint if not denied specifically or by necessary implications or stated to be not admitted in the pleadings of the defendant shall be taken to be admitted except as against a person under disability. However, proviso to this rule reads as, provided that the court may in its discretion require the fact to be proved otherwise than by such admission. Therefore, in the facts and circumstances, the pleadings in the reply to the counter claim even if taken to be as admitted the court can require the facts so admitted to be proved otherwise than by such admission. Therefore, under Order 8 Rule 5 pleadings could not be equated with the admissions made under Order 12 Rule 6 of the CPC. Therefore, under Order 8 Rule 5 pleadings could not be equated with the admissions made under Order 12 Rule 6 of the CPC. Moreover, in the present case, the reply of the counter claim was filed along with the replication and the plaintiff by way of present application wants merely to elaborate his denial specifically and also wants to establish his case as a defence which in the rpesent facts and circumstances is necessary for the purpose of determining the real question in controversy between the parties as provided under Order 6, Rule 17 CPC. 7. Therefore, in the facts and circumstances after carefully going through the authorities relied upon by both the parties, it is crystal clear that in view of Patna Regional Development Authority and others case (supra) and Akshya Restaurant case (supra) it is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings by way of amendment, therefore, keeping in view these observations of the Apex Court the authorities relied upon by the ld. counsel for the defendant i.e. Charan Singh case (supra), Narain Auto Agency and another case (supra), Jagir Singh case (supra) and Modi Spinning and Weaving Mills Co. Ltd. and another case (surpa) are of little help to him. However, as the plaintiff/applicant has moved this application after the lapse of time about a year therefore, it would be in the interest of justice if this application is allowed subject to the payment of costs of Rs. 200/-. I order accordingly." 3. Not satisfied with the impugned order, the present revision. 4. I have heard Mr. S.K. Mittal, Advocate for the petitioner Mr. R.K. Gupta, Advocate on behalf of the respondent No. 1 and with their assistance have gone through the record of this case. 5. The first submission raised by the learned counsel for the petitioner is that the application under Order 6 Rule 17 CPC has been filed by a lawyer by the name of P.N. Gupta who was not authorised to file the same on behalf of Banwari Lal. Moroever, the application was not supported by an affidavit. Even this was not verified according to law. Therefore, this was no application in the eyes of law and the application in question could not be allowed by the trial Court. In support of his contention Mr. Moroever, the application was not supported by an affidavit. Even this was not verified according to law. Therefore, this was no application in the eyes of law and the application in question could not be allowed by the trial Court. In support of his contention Mr. Mittal relies upon Oil and Natural Gas Commission v. Offshore Enterprises Inc., AIR 1993 Bombay 217 and Shri Yumnam Ibobi Singh and others v. Shri Yumnam Yaima Singh and others, AIR 1993 Gauhati 42. This submission of the learned counsel for the petitioner may look alluring at the first instance but on deeper scrutiny, I do not see any merit in the same. Firstly, the petitioner has not raised this objection in the reply to the application under Order 6 Rule 17 CPC and therefore, he is not permitted to raise this point in the High Court. Moreoever, it has not been shown to this Court that Banwari Lal has disowned the action of P.N. Gupta Advocate, who even appeared on behalf of plaintiff Banwari Lal as is clear from the impugned order itself which shows that the application was argued and pronounced in the presence of P.N. Gupta on behalf of thee plaintiff/applicant (now respondent No. 1) and Mr. R.K. Mehta, Advocate appeared on behalf of the present petitioner before the tiral Court. It might be possible that Mr. P.N. Gupta might have been instructed by Banwari Lal to appear and plead the case. In this view of the matter when Banwari Lal is not disowning the action of Mr. P.N. Gupta, therefore, I do not see any illegality when the application under Order 6 Rule 17 CPC was signed by Mr. P.N. Gupta Advocate on behalf of Banwari Lal. 6. It was then submitted on behalf of the petitioner that through the proposed amendment under Order 6 Rule 17 CPC the applicant wants to withdraw the admissions which is not permissible. In support of his contention the learned counsel for the petitioner relies upon M/s Modi Spinning and Weaving Mills Co. Ltd. and anothers v. M/s. Ladha Ram and Co., AIR 1977 SC 680. The submission of the learned counsel for the petitioner also cannot be accepted because of the peculiar facts of this case. In support of his contention the learned counsel for the petitioner relies upon M/s Modi Spinning and Weaving Mills Co. Ltd. and anothers v. M/s. Ladha Ram and Co., AIR 1977 SC 680. The submission of the learned counsel for the petitioner also cannot be accepted because of the peculiar facts of this case. I cannot forget that earlier the suit was filed by Banwari Lal to which written statement was filed by the present petitioner and certain additional objections in the shape of counter claim were taken. Those objections were replied by the plaintiff and he denied the factum of those objections. Later on, the plaintiff thought it proper to withdraw the suit. 7. Order 8 Rules 5(1) CPC lays down as follows:- "Every allegation of fact in the plaint if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :" 8. The legislature has also added a proviso to Order 8 Rule 5(1) CPC which is very important for our purpose which lays down as follows:- "Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." 9. It may be mentioned here that the petitioner and Bhawani Dutt, respondent No. 2, were the defendants in the trial Court and not the plaintiff. They had denied the allegations of the plaintiff in the written statement and also taken certain additional facts which have been denied by the plaintiff in the rejoinder. Since the suit of the plaintiff has been withdrawn therefore in my opinion, all the pleas which have been taken up by the plaintiff in the original plaint should be taken by him in the reply to the counter claim. Through the proposed application under Order 6 Rule 17 CPC the respondent/plaintiff is not adding any new cause of action, but he is reiterating the facts of the plaint and those facts were already in the notice of the defendants when they filed the written statement in the trial Court. 10. In this view of the matter, I do not see any merit in this revision and dismiss the same with the direction to the trial Court to decide the case itself within one year from the receipt of the copy of the order. 10. In this view of the matter, I do not see any merit in this revision and dismiss the same with the direction to the trial Court to decide the case itself within one year from the receipt of the copy of the order. 11. Nothing stated above shall amount an expression of my opinion on the merits of the case. Parties through their counsel are directed to appear before the trial Court on 5.3.2001. Revision dismissed.