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2020 DIGILAW 1908 (KAR)

Adinarayana Gupta v. K. Shivaramaiah Setty

2020-09-30

N.S.SANJAY GOWDA

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JUDGMENT N.S.Sanjay Gowda, J. - The plaintiff is the writ petitioner. The plaintiff had filed a suit for partition and separate possession of his 1/4th share (out of first defendant's 1/3rd share) in all the suit schedule properties. 2. The said suit was filed against his father Sri K.Shivaramaiah Setty-Defendant No 1 and his father's brothers Sri Venkatachalapathy-Defendant No.2 and Sri K. Ashwathanarayana Setty-Defendant No.3. 3. In the said suit the plaintiff's father's brother Sri K. Sathyanarayana Setty was arrayed as defendant No.4 and his children were arrayed as defendant Nos.5 to 7. 4. The said fourth defendant i.e., Sri K.Sathyanarayana Setty filed a written statement in which he admitted that Sri Shivaramaiah Setty, Sri K. Sathyanarayana Setty and Late M.K. Narayana Setty continuously and jointly enjoying the joint family properties and he had become the Karta of the joint family in his plea at paragraph 2 of his written statement. This plea was in response to paragraph 5 of the plaint. 5. He also admitted in his written statement that the plaintiff and defendant Nos.1 to 3 together were entitled to 1/3rd share, defendant Nos.4 to 7 were together having 1/3rd share, defendant Nos.8 to 11 were together entitled to 1/3rd share except a properties belong to defendant Nos.12 & 13. 6. However, after the trial was over, the fourth defendant made an application seeking to amend his written statement. Under the said application he sought to introduce 2 paragraphs i.e. paragraphs 13 & 14. In the said paragraphs, the fourth defendant however sought to resile from his admission made earlier by stating that there was no joint venture or joint family and by also stating that because he was the elderly person in the family he was called a Yajaman of the family but he was not a Kartha of the joint family. 7. In other words, by the averments made in these two paragraphs, he basically sought to withdraw the admission made by him in his original written statement. 8. The Trial Court, however came to the conclusion, that the granting of the amendment would not in any way change the nature of the contentions taken up in respect of the properties and therefore, no prejudice would be caused by allowing the amendment. The writ petitioner/plaintiff being aggrieved by this grant of amendment is before this Court challenging the granting of amendment. 9. The writ petitioner/plaintiff being aggrieved by this grant of amendment is before this Court challenging the granting of amendment. 9. It is the case of the learned counsel for the petitioner that the proposed amendment essentially amounted to withdrawal of the clear and categorical admission made by the 4th defendant regarding the nature of the joint family and his status in the family and such a withdrawal of an admission was impermissible by way of an amendment application. 10. The learned counsel for respondent No.5 i.e. son of the deceased fourth respondent contended that by virtue of the amendment his father was only seeking to amplify and elaborate the defence taken up by him and the proposed amendment was essentially an explanation to the admission and therefore, the Trial Court was justified in granting the amendment. He submitted that it was permissible under Order VI Rule 17 of the CPC to raise a new plea by way of amendment and legally also there was no bar for making such an amendment. He relied upon the following judgments: 1. RAJ KUMAR BHATIA V. SUBHASH CHANDER BHATIA, (2018) AIR SC 100 2. RAM NIRANJAN KAJARIA V. SHEO PRAKASH KAJARIA AND ORS. JUGAL KISHORE KAJARIA V. SHEO PRAKASH KAJARIA AND ORS, (2016) Supp AIR SC 1018 3. MOHAMMED ALI AND ANOTHER V. SMT. KHATEJATAL KUBRA AND OTHERS, (2002) 1 KarLJ 596 . 4. SRI SHAMBANNA V. THE KARNATAKA POLICE EMPLOYEES HOUSE BUILDING COOPERATIVE SOCIETY(R), MYSORE AND OTHERS, (2010) 2 KCCR 846 . 11. The fourth defendant in his original written statement categorically stated as follows in respect of paragraph 5 of the plaint: "2. Allegations in para.5 of the plaint that other brothers namely Shivaramaiah Setty, K.S.Sathyanarayana Setty and Late M.K.Narayanasetty continued to live jointly enjoying the joint family properties and this defendant became the Manager of the joint family is also true and correct." 12. In response to paragraph 9 of the plaint, he stated as follows: "5. Allegations in para.9 that the plaintiff and defendants 1 to 3 together having 1/3rd share, defendants 4 to 7 having 1/3rd share and defendants 8 to 11 together having 1/3rd in the suit schedule properties except the properties belonging to defendants 12 and 13 is true." 13. In response to paragraph 9 of the plaint, he stated as follows: "5. Allegations in para.9 that the plaintiff and defendants 1 to 3 together having 1/3rd share, defendants 4 to 7 having 1/3rd share and defendants 8 to 11 together having 1/3rd in the suit schedule properties except the properties belonging to defendants 12 and 13 is true." 13. It is thus clear that the fourth defendant in his original written statement admitted that he and his brothers were living jointly and enjoying joint family properties and he had became the Manager of the joint family also. He also admitted that the plaintiff and defendants 1 to 3 together at 1/3rd share. 14. However, by the amendment, the fourth defendant sought to state as follows: "Because they are vysyas unable to do effective agriculture for want of skill. Therefore, the fourth defendant began to start business independently at Madhugiri getting better profit. Because of kith and kin advised the K.Shivaramaiah shetty and M.K.Narayana shetty to start business independently accordingly, they have started business independently used to earn income independently. There is no joint venture or joint family regarding business developments." 15. It is thus clear by virtue of these proposed amendments that the fourth defendant basically sought to disown his earlier plea that they were living jointly and enjoying the joint family properties together. He, in fact, went to the extent of saying that there was no joint venture or joint family regarding business development. He also sought to disown his earlier admission that he was the Manager and sought to style himself as Yajamana, by virtue of the amendment. It is thus clear that clear admissions given in the earlier written statement were sought to resiled from. 16. The learned counsel for the 5th respondent however contended that it was permissible for his father to take an inconsistent plea and this was basically an amendment which sought to explain his admission as noted above. 17. In my view, this contentions cannot be accepted. By the proposed amendment, an admission which was clear and categorical, was sought to be withdrawn and therefore, it could not be construed as an explanation for an admission. In fact, a proper reading of the proposed amendment, would demonstrate that an altogether new case was sought to be set up by the fourth defendant. 18. By the proposed amendment, an admission which was clear and categorical, was sought to be withdrawn and therefore, it could not be construed as an explanation for an admission. In fact, a proper reading of the proposed amendment, would demonstrate that an altogether new case was sought to be set up by the fourth defendant. 18. The judgment relied upon by the learned counsel for the fifth respondent in AIR 2018 SC 100 (stated supra) dealt with a case in which the proposed amendment sought to explain an admission and therefore, in that context, the Apex Court stated that allowing the amendment did not amount to withdrawal of admission. 19. However, in the instant case as noted above by virtue of the amendment an admission made earlier was sought to be completely withdrawn and an altogether new case was sought to be set up. Thus, the said judgment can have no relevance. 20. Similarly, the judgment relied upon by the learned counsel in AIR 2016 SC (Supp) 1018 (stated supra) is also to be effect that an admission can be clarified and explained. But, in the instant case, the fourth defendant basically sought to resile from his clear admission and therefore, this judgment would have no application. 21. In fact, in the other judgment relied upon by the learned counsel i.e. 2002(1) Kar. L.J.596. (stated supra) , this Court has held that by way of an additional written statement, a new case could not be set up and if at all, a new case sought to be set up, provisions of Order VI Rule 7 of cpc will have to be invoked. It must be stated here that raising a new plea is wholly different from withdrawing an admission made in the written statement. The learned counsel for the respondent was therefore not justified in stating that the fourth defendants was merely invoking Order VI Rule 7 of CPC. If the provisions of Order VI Rule 7 of CPC were to apply, then, a completely plea which was not even set up in the written statement can to be inserted by way of amendment. However, in the instant case, what was basically sought for by amendment was withdrawal of the two key admissions made in the original written statement. In my view this can not be said to be raising a new plea. However, in the instant case, what was basically sought for by amendment was withdrawal of the two key admissions made in the original written statement. In my view this can not be said to be raising a new plea. Therefore, this reliance placed upon by this judgment would also be of no avail. 22. Similarly, the judgment relied upon by the learned counsel for the respondent i.e. 2010(2) KCCR 846 (stated supra) cannot be applicable since that was a case which was in relation to a plea that could be raised by way of additional written statement and that is not the case here. 23. As stated above, since the fourth defendant by virtue of the proposed amendment sought to withdraw two key admissions made in his original written statement, the trial Court was not justified in granting the same, I, therefore, set aside the impugned order and dismiss the application for amendment in I.A.No.27. The writ petition accordingly allowed.