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2018 DIGILAW 54 (UTT)

Prabhan Pratap Singh v. Prabhatesh Pratap Singh

2018-02-16

MANOJ K.TIWARI

body2018
JUDGMENT : Manoj K. Tiwari, J. By means of present petition, under Article 227 of the Constitution of India, petitioner has sought the following relief:- “(i). Issue a writ, rule, order or direction in the nature of certiorari quashing the impugned judgment/order dated 13.10.2017 (Annexure No. 1) passed by the Civil Judge (Senior Division) Mussoorie in O.S. No. 151 of 2013 ‘Shri Prabhatesh Pratap Singh Vs. Shri Prabhan Pratap Singh and others’ and further allow the defendant no. 1’s/petitoner’s application paper no. 91 Ka (Annexure no. 4) preferred by the petitioner/defendant no. 1 for amendment of his Written Statement.” 2. Heard learned counsel for the parties and perused the records. 3. This writ petition is directed against the order dated 13.10.2017 passed by the Trial Court i.e. Civil Judge (Senior Division), Mussoorie in O.S. No. 151 of 2013, whereby the application for amendment in the written statement made by the petitioner has been rejected. 4. Brief facts of the case, which are relevant for appreciating the controversy are as follows:- Respondent No. 1 filed a suit for partition of a property known as Katesar Castle with five and a half acres of land situated at Happy Valley, Charleville Road, Mussoorie, District Dehradun and also for rendition of account, which was registered as O.S. No. 151 of 2013. According to the plaint case, plaintiff and Late Sri Prabhakar Pratap Singh were real brothers. Defendant No. 2 is the wife of Late Sri Prabhakar Pratap Singh while defendant Nos. 1 and 3 are his son and daughter respectively. Rani Savita Kumari Devi, who was the mother of petitioner, grand mother of defendant Nos. 1 and 3 and mother-in-law of defendant No. 2 had gifted the suit property to her two sons i.e. plaintiff and father of defendant Nos. 1 and 3 by registered gift deed dated 28.03.1972. By virtue of the gift deed, plaintiff became owner in respect of half portion of the suit property and the remaining half has gone to the share of the defendants who are legal representatives of Late Sri Prabhakar Pratap Singh. 5. Defendant No. 1 (petitioner herein) filed a written statement in which he admitted that Rani Savita Kumari Devi, mother of plaintiff and grand mother of defendant No. 1 was the sole and absolute owner of the suit property. 5. Defendant No. 1 (petitioner herein) filed a written statement in which he admitted that Rani Savita Kumari Devi, mother of plaintiff and grand mother of defendant No. 1 was the sole and absolute owner of the suit property. It was further stated in paragraph No. 3 of the written statement that Rani Savita Kumari Devi had gifted the suit property to her two sons by a registered gift deed. In paragraph No. 21, defendant No. 1 stated that upon death of his father, he has succeeded to half undivided share in the suit property to the exclusion of his mother and sister. Paragraph No. 3 and Paragraph No. 21 of the said written statement are extracted below:- “3. In para 3 of the plaint it is true that the said Rani Savita Kumari Devi had gifted the said immovable property ‘Katesar Castle’, Mussoorie to her two sons namely the plaintiff and Shri Prabhakar Pratap Singh (father of answering defendant) vide a deed of gift dated 28.03.1972 duly registered in the office of the Joint Sub-Registrar at Mussoorie. 21. That unfortunately, the defendant’s No.1’s father Shri Prabhakar Pratap Singh expired on 1.5.2012. As per the rules of ‘Primogeniture’ applicable to the Royal Families in India, the defendant No. 1 has succeeded to half undivided share in the said property to the exclusion of his mother Smt. Pushpendra Kumari Devi (defendant No.2) and his married sister Smt. Pratyush Kumari. As a consequence of the aforesaid Rule, the said property is duly mutated in the name of the defendant No. 1 as owner of half undivided share.” 6. After exchange of pleadings, issues were settled. On 21.09.2017, defendant No. 1 filed an application for amendment of his written statement under Order 6 Rule 17 of C.P.C., whereby he sought permission to amend his written statement. In his application, petitioner/defendant No. 1 stated that in the first week of July, 2017, he discovered a document in an old tin box, which was kept in the box room of his residence at Mussoorie. The said document was executed by his grand mother Rani Savita Kumari Devi, whereby she has allotted the suit property solely to his father Late Raja Prabhakar Pratap Singh to the exclusion of all other family members. The said document was executed by his grand mother Rani Savita Kumari Devi, whereby she has allotted the suit property solely to his father Late Raja Prabhakar Pratap Singh to the exclusion of all other family members. It was further stated that neither he, nor his father had any knowledge about the existence of such document before the said discovery, therefore, the said fact could not be brought to the knowledge of the learned Court. By the said application, petitioner/defendant No. 1 sought permission to add paragraph Nos. 21 and 22 in place of paragraph No. 21 of the written statement. Paragraph Nos. 21 and 22 sought to be added by the said application are extracted below:- “21. That vide the Memo/Declaration dated 20.06.1978 executed by the Defendant No. 1’s Grand Mother, Rani Savita Kumari Devi, the suit property has been allotted solely to the Defendant No. 1’s father, the Late Raja Prabhakar Pratap Singh, to the exclusion of all other family members. The recent discovery of the said Memo/Declaration has overshadowed and curtailed the rights claimed by the Plaintiff over the suit property. 22. That unfortunately the defendant No.1’s father Raja Prabhakar Pratap Singh expired on 1.5.2012 leaving behind his Last Will dated 20.12.2010 wherein he had bequeathed all his interest and his half undivided share in the suit property as well as other immovable properties in favour of his son, the defendant No.1 to the exclusion of all the others. However, the said Raja Prabhakar Pratap Singh, himself was not aware and had no knowledge about the Memo/Declarion dated 20.06.1978 previously executed by his Mother, Rani Savita Kumari Devi. Hence, he bona fidely executed the said WILL oblivious of the existence of the said Memo/Declaration. As a consequence the said WILL executed by his father, the defendant No.1 bonafidely moved for the mutation of the half undivided share in the suit property to the exclusion of his mother Smt. Pushpendra Kumari (defendant No.2) and his married sister Smt. Pratyush Kumari (defendant No.3). The defendant No.1’s name came to be recorded and mutated as owner of half undivided share in the records of Nagarpalika Parishad, Mussoorie. The defendant No.1’s name came to be recorded and mutated as owner of half undivided share in the records of Nagarpalika Parishad, Mussoorie. However, with the twist in the events, after the discovery of the said Memo/Declaration dated 20.06.1978, the Defendant No.1, is liable to be declared as the full owner of the property in dispute to the exclusion of the Plaintiff and the Defendant No. 2 and 3.” 7. Learned Trial Court rejected the amendment application filed by defendant No. 1/petitioner vide order dated 13.10.2017. The reasons recorded by learned Trial Court for rejecting the amendment application are as follows:- (i) Defendant No. 1 wants to wriggle out of his admission made in the written statement. (ii) Earlier also, defendant No. 1 has amended his written statement on the basis of will executed by his father and had claimed half share in the suit property. (iii) There is nothing to show that defendant No. 1 acted with due diligence. 8. Perusal of the order dated 13.10.2017 further reveals that (a) plaintiff’s evidence was closed on 20.07.2016. (b) defendant No. 1 is a resident of Mussoorie and the tin box allegedly containing the document was always in his possession, yet, there has been a delay of more than four years in bringing the said document on record. 9. Sri Dharmendra Barthwal, learned counsel for the petitioner submits that the amendment application filed by petitioner ought to have been allowed as taking of inconsistent plea in a written statement is permissible and the learned Trial Court has erred in law in rejecting the same. He has relied upon a judgment passed by Hon’ble Supreme Court in the case of Usha Bala Shaheb Swami and others Vs. Kiran Appaso Swami and others reported in 2007 (5) SCC 602 . In the said judgment, Hon’ble Supreme Court has held that Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. Kiran Appaso Swami and others reported in 2007 (5) SCC 602 . In the said judgment, Hon’ble Supreme Court has held that Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It has been further clarified in the said judgment that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footing, 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. 10. In paragraph No. 27 of the aforesaid judgment, by referring to the judgment reported in 1976 (4) SCC 320 , M/s. Modi Spinning & Weaving Mills Co. Ltd. and Another Vs. M/s. Ladha Ram and Co., Hon’ble Supreme Court drew distinction between inconsistent plea sought to be added by way of amendment in written statement and a plea which would displace the plaintiff completely from the admissions made by the defendant in the written statement. 11. Petitioner has also placed reliance upon the judgment rendered by Hon’ble Supreme Court in the case of Praful Manohar Rele Vs. KrishnaBai Narayan Ghosalkar and others reported in 2014 (11) SCC 316 . In the said judgment, Hon’ble Supreme Court has held that in cases, where there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law. 12. Learned Trial Court has rejected the amendment application filed by the petitioner on the ground that defendant No. 1 is trying to wriggle out of the admission made by him in his written statement. 13. In his written statement, defendant No. 1 has admitted that Rani Savita Kumari Devi had gifted the suit property to her two sons namely plaintiff and father of defendant No. 1 by a registered deed dated 28.03.1972. Defendant No. 1 is trying to wriggle out of the said admission through amendment, as he has stated in his amendment application that entire suit property was allotted by Rani Savita Kumari Devi in favour of his father through a memo/declaration dated 20.06.1978. Such plea cannot be permitted to be introduced by way of amendment that too at this belated stage. 14. Such plea cannot be permitted to be introduced by way of amendment that too at this belated stage. 14. Hon’ble Supreme Court in the case of Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and others reported in 2015 (10) SCC 203 has held that admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment, however, an admission can be clarified or explained by way of an amendment. Para 23 of the said judgment is extracted below:- “We agree with the position in Nagindas Ramdas and as endorsed in Gautam Sarup that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava, does not reflect the correct legal position and it is overruled.” 15. Hon’ble Supreme Court in the case of Gautam Sarup Vs. Leela Jetly and others reported in 2008 (7) SCC 85 has held that “ an admission made in a pleading is not be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore. Para 28 of the said judgment is extracted below:- “What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” 16. It is settled position in law that by an amendment, a defendant cannot be permitted to withdraw his admission made in the written statement, although he can take new defence or take inconsistent plea through amendment. However, amendment cannot be allowed in cases where serious injustice or irreparable loss is likely to be caused by allowing prayer for amendment. 17. In the present case, petitioner/defendant No. 1 is trying to withdraw the admission regarding half share of the plaintiff in the suit property. This would cause grave and irretrievable prejudice to the plaintiff, who would be displaced completely, in the event amendment is allowed. 17. In the present case, petitioner/defendant No. 1 is trying to withdraw the admission regarding half share of the plaintiff in the suit property. This would cause grave and irretrievable prejudice to the plaintiff, who would be displaced completely, in the event amendment is allowed. In such view of the matter, any interference with order passed by learned Trial Court would be unwarranted. 18. The writ petition, therefore, lacks merit and is liable to be dismissed and is hereby dismissed. No order as to costs.