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2015 DIGILAW 1299 (ALL)

Duryodhan v. Collector/D. D. C. Basti

2015-05-20

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri R.N.S. Yaday and Sri H.D. Verma, for the petitioners and Sri Jokhan Prasad, for respondent-2. With the consent of the parties writ petition is decided finally. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 23.01.2015 allowing the revision of respondent-2 and setting aside the order of Consolidation Officer dated 10.09.2013, by which amendment application filed by the petitioners for amending their written statement was allowed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to basic consolidation year khata 14 of village Paraspur alias Dubauli, tappa Ganeshpur, pargana Nagar Purab, district Basti. In basic consolidation year, khata in dispute was recorded in the names of the petitioners and respondent-2. Paltu (respondent-2) filed a time barred objection (registered as TB Case No. 78) under Section 9-A of the Act, for deleting the names of the petitioners from khata in dispute. The Consolidation Officer by order dated 22.12.2010 dismissed the objection of respondent-2 as time barred. Respondent-2 filed an appeal (registered as Appeal No. 956). There was another appeal of respondent-2 i.e. Appeal No. 406 from the order of Consolidation Officer dated 30.12.1995. Both the appeals were consolidated and allowed by Settlement Officer Consolidation, by order dated 15.06.2012 and orders of Consolidation Officer dated 30.12.1995 and 22.10.2010 were set aside and the matters were remanded to Consolidation Officer for deciding on merit after giving opportunity of evidence/hearing to the parties. The petitioners filed a revision (registered as Revision No. 2652 of 2010). However, as interim order was not granted in aforesaid revision as such the proceedings before Consolidation Officer was started, in pursuance of the remand order. 4. The petitioners filed their written statement/counter objection on 10.09.2012 before Consolidation Officer. In this written statement/counter objection, the petitioners have given a pedigree of the parties, in which they had shown Judawan (predecessor of respondent-2) and Jaggu (predecessors of the petitioners) as sons of Khushi Lal. Some other errors have also been crept in this written statement/counter objection. The petitioners, therefore, filed an application dated 05.06.2013 for amendment of written statement/counter objection. Respondent-2 contested and filed an objection in the amendment application. Some other errors have also been crept in this written statement/counter objection. The petitioners, therefore, filed an application dated 05.06.2013 for amendment of written statement/counter objection. Respondent-2 contested and filed an objection in the amendment application. The Consolidation Officer, by order dated 19.08.2013, held that a perusal of written statement/counter objection and amendment application show that incomplete pedigree was mentioned in written statement/counter objection. Issue between the parties is in respect of pedigree. As such proposed amendment will be necessary to prevent miscarriage of justice. The proposed amendments do not change nature of controversy between the parties. On these findings he allowed the amendment application. 5. Respondent-2 filed a revision (registered as Revision No. 366/D20141714001277) from the aforesaid order. The revision was heard by the Collector/ Deputy Director of Consolidation, who by order dated 23.01.2015, held that from the rival pedigree set up by the parties, there was dispute between them as to whether Khushi Lal had two sons or one son. The Consolidation Officer held that pedigree as given in written statement/counter objection was incomplete but he had not recorded any findings as to how it was incomplete. He had not taken notice of the order of Settlement Officer Consolidation. Amendment application should not have been decided without taking evidence. Pedigree given in the plaint of Civil Suit No. 192 of 1973 was not liable to be accepted without any evidence. On these findings, the revision was allowed and order of Consolidation Officer dated 19.08.2013 was set aside and the case was remanded to decide afresh after considering evidence. Hence this writ petition has been filed. 6. The counsel for the petitioners submitted that there was mistake in pedigree given by the petitioners in their written statement/counter objection. The Consolidation Officer found that proposed amendment were essential for deciding the controversy between the parties, to prevent miscarriage of justice and will not change cause of action. The word "incomplete pedigree" has been inadvertently noted for "incorrect pedigree" in the order. For deciding the amendment application, evidence was not required to be examined. In fact, amendment in pleading was necessary for adducing evidence. Pedigree as given in the amendment application had already been given in the plaint of Civil Suit No. 192 of 1973. It was due to bonafide mistake, incorrect pedigree was mentioned in the written statement/counter objection, therefore amendment application was filed. In fact, amendment in pleading was necessary for adducing evidence. Pedigree as given in the amendment application had already been given in the plaint of Civil Suit No. 192 of 1973. It was due to bonafide mistake, incorrect pedigree was mentioned in the written statement/counter objection, therefore amendment application was filed. The Consolidation Officer allowed the amendment application, exercising his discretion. Deputy Director of Consolidation has illegally allowed the revision and set aside the order of Consolidation Officer. 7. In reply to the aforesaid arguments, the counsel for the respondents submitted that proposed amendment amounts to withdrawal of the admission contained in written statement. By the admission in written statement, a valuable right has accrued to respondent-2. In case, admission is withdrawn then respondent-2 will be displaced from their right. He relied upon the judgment of Supreme Court in Heera Lal v. Kalyan Mal, 1998 (1) SCC 278 , in which it has been held that an admission cannot be withdrawn by amendment. 8. I have considered the arguments of the counsel for the parties and examined the record. Provisions of Civil Procedure Code, 1908 have not been applied to the proceedings before consolidation authorities as held by Full Bench of this Court in Bijai Narain v. State of U.P., AIR 1970 All. 241 (FB) and Supreme Court while considering similar provisions of State of Bihar Consolidation and fragments Act in Mohd. Shakoor Mian v. Raj Mangal Mishra, (1999) 7 SCC 641. Rule of pleadings has no importance in the proceedings before the consolidation authorities. Consolidation authorities are required to decide the dispute, after framing issues and taking evidence of the parties according to Rule 26. 9. However, in this case objection and written statement/counter objection were filed by the parties. According the petitioners, pedigree as mentioned in written statement/counter objection was incorrect and some other errors were also crept in written statement/counter objection as such amendment application has been filed to correct those mistakes, which was allowed by Consolidation Officer. Consolidation Officer found that proposed amendment were essential for deciding the controversy between the parties, to prevent miscarriage of justice and will not change cause of action. Deputy Director of Consolidation has illegally held that without examining evidence, amendment application has been illegally allowed. Deputy Director of Consolidation has illegally given much weight to word "incomplete pedigree", instead of going to contents of amendment application. 10. Deputy Director of Consolidation has illegally held that without examining evidence, amendment application has been illegally allowed. Deputy Director of Consolidation has illegally given much weight to word "incomplete pedigree", instead of going to contents of amendment application. 10. The counsel for respondent submitted that proposed amendment amounts to withdrawal of admission from written statement. In the objection, respondent-2 has given pedigree from Kabilas. According to him Kabilas was having one son Lutawan and Paltu respondent-2 was son of Lutawan. The petitioners in their written statement/counter objection have given pedigree from Khushi Lal. Khushi Lal had two sons Judawan and Jaggu. Kabilas was son of Judawan while the petitioners were shown as descendants of Jaggu. In the amendment application, they have mentioned Jaggu died issueless and Judawan had two sons Kabilas and Ganpat. Thus pedigree given by respondent-2 in his objection has not been admitted in the written statement. Proposed amendments do not amounts to withdrawal of admission. 11. No doubts that Supreme Court in Heera Lal v. Kalyan Mal, 1998 (1) SCC 278 , held that by way of amendment, admission contained in written statement cannot be withdrawn. But this judgment has not been followed by Supreme Court in subsequent judgments in Usha Balasahab Swami v. Kiran Appaso Swami, AIR 2007 SC 1663 and Revajeetu Builders and Developers v. Narayan Swami, (2009) 10 SCC 84 . In order to appreciate the controversy relating to amendment of pleadings, the provisions of Order 6, Rule 17 C.P.C. are quoted below:- Order 6, Rule 17 . Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 12. The leading English case is of Cropper v. Smith, (1884) Ch D 700 (CA), which has been through out followed by Supreme Court. The object underlying amendment of pleadings has been laid down by Browen, L.J. in the following words: (Ch D pp. 710-11) "... 12. The leading English case is of Cropper v. Smith, (1884) Ch D 700 (CA), which has been through out followed by Supreme Court. The object underlying amendment of pleadings has been laid down by Browen, L.J. in the following words: (Ch D pp. 710-11) "... it is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. ... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right." 13. Supreme Court in Usha Balashaheb Swami v. Kiran Appaso Swami, AIR 2007 SC 1663 held that it is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case. By the proposed amendment, the appellants were not withdrawing their admission in respect of the half-share in the ancestral property rather they only added that the plaintiff and Defendants 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half-share in the property of late Veersangayya. We do not think that it was impermissible in law for the appellants to seek amendment of the written statement in the manner it was sought for. 14. Supreme Court in Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84 , after reviewing earlier cases held as follows:- "On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17 . These are only illustrative and not exhaustive. 15. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17 . These are only illustrative and not exhaustive. 15. In this case as held that amendment do not amounts to withdrawal of admission nor it change the nature of controversy. The controversy between the parties was as to whether, the petitioners belonged to the family of respondents-2 and land in dispute was coming from the time of common ancestor. The pedigree as being given by amendment application had already been given by the petitioners in their plaint of civil Suit No. 209 of 1968. Except bonafide mistake, there cannot be any other reason for them to give another pedigree. So far as proof of the pedigree is concerned, it is next step, which comes after pleading. It is well settled that under second part of Order 6, Rule 17 C.P.C. all such amendments which may be necessary for the purpose of determining the real questions in controversy between the parties should be allowed. 16. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation dated 23.01.2015 is set aside and the order of Consolidation Officer dated 10.09.2013, by which amendment application filed by the petitioners was allowed, is reinstated. Consolidation Officer may proceed with trial of the case. Petition Allowed.