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2015 DIGILAW 627 (ORI)

Sadananda Mutika v. Ladi Trinath Rao

2015-11-16

BISWANATH RATH

body2015
JUDGMENT : Biswanath Rath, J. 1. This matter arises out of an order dated 4.02.2009 passed by the Civil Judge (Senior Division), Gunupur in Civil Suit No. 54/2004 thereby rejecting an application for amendment of the written statement filed by the defendant-petitioner under Order-6, rule-17 of C.P.C. 2. Short fact involved in this case is that the opposite parties as plaintiffs filed the suit seeking a relief for permanent injunction against the defendant-petitioner restraining them from interfering in the peaceful possession of the plaintiffs over the suit land and for such other reliefs as the Court deems fit and proper in the interest of justice. 3. Following service of notice the present petitioner filed a written statement on behalf of defendant Nos. 1 & 3. During pendency of the suit the petitioner-defendants filed an application under Order 6, rule 17 C.P.C. seeking amendment of the following paragraphs: "After Para No. 11 the following the Para is to be added. That the defendant No. 1 is in peaceful continuous possession over the entire lands which are within the boundaries mentioned in the plaint by the plaintiff since his fore-fathers till today with the knowledge of one and all of the locality including the plaintiff as such even otherwise the defendant No. 1 have prescribed his right title over the suit schedule property which are within the boundaries mentioned in the plaint by their uninterrupted continuous possession in assertion of his own right since his grant fathers time till-today and the plaintiff has lost his title if any. That at the prayer portion after para No. 2 following Para is to be added. To declare the right title and possession of the suit schedule property in favour of the defendant No. 1 within the boundaries mentioned in the plaint by adverse possession." Considering the rival submissions of the parties, the trial Court by the impugned order rejected the application at the instance of the petitioner-defendant on the premises that the petition for amendment of written statement cannot be allowed at that stage of the suit and it further held that the petition has been filed to delay the disposal of the suit as well as creating a new case. 4. Mr. A.K. Nanda, learned counsel for the petitioner contended that the trial had not commenced by the time of filing of the amendment application. 4. Mr. A.K. Nanda, learned counsel for the petitioner contended that the trial had not commenced by the time of filing of the amendment application. The rejection vide the impugned order was against the settled principle of law, the Trial Court failed in appreciating the provision contained in Order 6 rule 17 of the C.P.C. Further the trial Court also failed in appreciating the settled position of law permitting raising of inconsistent pleas and taking away the admission in the interest of justice as well. 5. On his appearance Mr. C.A. Rao, learned senior advocate for the opposite parties submitted that in view of the specific pleading in the written statement, the attempt of the petitioner taking away the admissions was impermissible in the eye of law. Further the petitioners could not have been permitted to raise an inconsistent plea by way of amendment and in the event, any such permission is granted, there would be vital shifting in the admission of the petitioners in their written statement. It is in these premises, Mr. Rao, learned senior advocate contended that the order of the trial Court is justified. Heard learned counsel appearing on behalf of both parties. 6. From perusal of the pleading of the petitioners in their written statement filed in the trial Court, the petitioners had a clear pleading vide Paragraph Nos. -2, 3 & 11 which reads as follows: "2. That the allegation made in Para No. 4 (f) and (ii) of the plaint of the plaintiff are true. It is a fact that the plaintiff has got lands at Gopalpur Mouza which stands recorded in the name of his late father Ladi Sanyasi under Khata No. 51/108, Plot No. 140/360, Ac. 1.36 cents, Plot No. 141/361, Ac. 0.64 cents, Plot No. 141/362, Ac. 2.00, Plot No. 4/363/415. Ac. 1.93 cents total extent of Ac. 5.93 cents. 3. That the allegations in Para No. 4(iii) of the plaint of the plaintiff is false. That the above land though stands recorded in the name of late ladi Sanyasi the father of the plaintiff late ladi Sanyasi and even after him the plaintiff has not cultivated the above lands and yet it is lying follows:-- xxxx xxxx 11. 3. That the allegations in Para No. 4(iii) of the plaint of the plaintiff is false. That the above land though stands recorded in the name of late ladi Sanyasi the father of the plaintiff late ladi Sanyasi and even after him the plaintiff has not cultivated the above lands and yet it is lying follows:-- xxxx xxxx 11. That the plaintiff has filed this case mentioning the lands which stands recorded in the name of his late father and obtained the injunction order in his favour and managed to mis-guide the process server of the Hon'ble Court to affix the red flag and notice on the lands of the defendant No. 1 & 3. 7. Now looking to the amendment as reflected hereinabove and the pleadings of the petitioner as quoted hereinabove, this Court observes that the petitioners had already a pleading in relation to their peaceful continuous possession over the disputed property since long and they had also a clear claim in the same paragraph that the disputed lands belongs to the defendant Nos. 1 & 3. So considering the aforesaid aspects, this Court is of the view that the amendment sought for was in no way inconsistent to the pleadings already therein. This Court further observes that the trial Court erred in law in appreciating the facts involved in the matter and thereby arrived at a wrong conclusion. 8. Now coming to the law on the subject in a case in between Baldev Singh & Ors. etc. v. Manohar Singh & Anr. etc. as reported in JT 2006 (7) SC 139 the Hon'ble Apex Court came to hold that in case of amendment of written statement, the Courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. In further consideration of the provision of law on the subject, the Hon'ble Apex Court in the very same judgment again came to hold that in view of the proviso under Order 6 rule 17 of C.P.C., which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings. Similarly, in the very same judgment, the Hon'ble Apex Court has also held that there is no clear bar in withdrawing an admission. However, it is relevant for the Courts to consider as to whether the amendment brought in is consistent with the pleadings already there in the written statement and relevant for the purpose of effective adjudication of the lis. Similarly, in another decision in the case of Hundari Bewa v. Kaluni Dei & others as reported in 56 (1983) C.L.T. 400, this Court in considering the effect of amendment of the written statement in paragraph 9' came to hold as follows: "9. The Courts exist for deciding the rights of parties and not to punish them for mistakes they make in the conduct of their cases, and they do not exist for the sake of discipline, but for the sake of deciding matters in controversy, permission to correct an error or mistake should be granted unless it be fraudulent or intended to overreach and where such withdrawal does not cause injustice to the other side, or such injury which may not be compensated by costs. The rules of procedure are intended to sub-serve justice. Where the Court is satisfied that the admission was made by inadvertence or erroneously and there was no malafide on the part of the applicant, it would be denial of justice not to permit the party to withdraw the admission or correct the mistake. In Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another, it was observed: "........ An admission made by a party may be withdrawn or may explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn........." In Gobinda Sahoo v. Ram Chandra Nanda and another, it was said: "......... Where an admission appears to have been made by inadvertence or erroneously in ignorance of the true legal position due to the fault of the advocate, an amendment may be allowed even though the effect of an admission may be taken away." Above decisions clearly supports the case of the petitioner. 9. Considering the citations at the instance of the learned senior advocate for the opposite parties in the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. & Anr. V. M/s. Ladha Ram & Co. 9. Considering the citations at the instance of the learned senior advocate for the opposite parties in the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. & Anr. V. M/s. Ladha Ram & Co. as reported in AIR 1977 (SC) 680 , this Court finds that the fact & situation involved in the above reported case does not match the fact involved in the present case. Therefore, the citation has no support to the present case. 10. Under the circumstances and particularly in view of the findings arrived at hereinabove and the settled position of law as narrated hereinabove, this Court is of the view that the trial Court failed in appreciating the factual as well as legal aspects involved in the matter and thereby arrived at a wrong and erroneous order impugned in the present writ petition. This Court while setting aside the impugned order allows the application under Order 6, rule17 at the instance of the petitioner and while doing so, directs the petitioner to file his amended written statement within a period of two weeks from today. Since the order has been passed after hearing the parties, this Court further directs both the parties to appear before the learned trial Court with certified copy of this judgment on 30th November, 2015 and the trial Court shall do well in disposing the Civil Suit bearing C.S. No. 54/04 as expeditiously as possible preferably within a period of six months from today. 11. The writ petition succeeds to the extent directed hereinabove. However, there shall be no order as to cost.