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PETITIONER: HEERALAL

       Vs.

RESPONDENT: KALYAN MAL & ORS.

DATE OF JUDGMENT:       19/11/1997

BENCH: S.B. MAJMUDAR, M JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                THE 19TH DAY OF NOVEMBER, 1997 Present:              Hon’ble Mr. Justice S.B. Majmudar              Hon’ble Mr. Justice M. Jagannadha Rao Sushil Kumar Jain, Pradeep Aggarwal, A.P. Dhamija, Advs. for the appellant A.K. Goel, and Mrs. Sheela Goel, Advs. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: S.B. Majmudar, J.      Leave granted.      Heard learned  counsel for  the appellant  as  well  as learned advocate  for respondent  nos.  1  and  2,  who  are original defendant  nos. 1 and 2 and are the only contesting parties in  this appeal.  The appeal  was taken up for final disposal forthwith by their consent.      Appellant-Plaintiff  had   filed  a   civil  suit   for partition of  10 items  of immovable properties mentioned in schedule-A of  the plaint  and also  for partition  of other properties listed  in Schedule-B of the plaint. The suit was filed in  1993 in  the Court  of District  Judge, Bundi  for partition  of  the  suit  properties  mentioned  in  diverse schedules annexed  to the  plaint. The contesting respondent nos. 1  and 2,  who are  defendant nos.1  and 2 in the suit, being real  brothers of  the plaintiff filed a joint written statement on  01st October  1993 in  the Trial Court. In the written  statement   a  definite  stand  was  taken  by  the contesting defendants  that out  of the listed properties in Schedule-A only  three properties  at items  4,9 and 10 were exclusively belonging  to the contesting defendants and were not joint  family properties  of the plaintiff and defendant nos.  1   and  2.  Meaning  thereby  that  the  other  seven properties listed  in Schedule-A  were admitted  to be joint family properties.  Not only  that but  in para  11  of  the written statement  it was  submitted that  ’the plaintiff is only entitled  for partition  regarding  the  properties  of Schedule-A except  items 4,9  and 10  and all the properties mentioned in  Schedule-B. They  also stated in the said para 11  of  the  written  statement  that  so  far  as  admitted properties were  concerned, the  plaintiff was  entitled  to

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1/3rd share  and remaining 2/3rd share belonged to defendant nos. 1  and 2.  It appears that thereafter the suit remained pending for  trial for  number of years. On the basis of the aforesaid stand  taken by  the  contesting  parties  in  the written statement,  issues were  framed by  the Trial Court. Issue No.2. amongst others, read as under:      "Whether the  property mentioned in      Item No.4,  9 & 10 of Schedule "Aa"      attached with  the  plaint  is  the      property   of    Hindu    Undivided      Family?"      Obviously this  issue was  framed in  the light  of the admission  of  the  contesting  defendants  in  the  written statement that  rest of  the items listed in Schedule-A were joint family  properties wherein  the plaintiff  had a share along with the defendants.      In the light of the aforesaid admitted position between the parties  qua these  properties the  plaintiff  moved  an application for appointment of a receiver in connection with 7 admitted  properties in  Schedule-A. It  was at that stage and that  too after  a passage  of about  18 months from the moving of  such application  for appointment  of receiver by the appellant  that defendant  no.1  came  forward  with  an amendment application to amend his written statement. In the amendment application  it  was  submitted  that  because  of incomplete information  supplied by  him to  his counsel the written statement  came to  contain the so-called admissions regarding 5  out of  7 items of the properties in schedule-A and that  he  had  suffered  a  heart  attack  in  1989  and therefore when  the written statement was moved in 1993 this error crept  in. He also wanted to insert a further averment in the  written statement  regarding  Schedule-6  properties that they  had ceased  to remain  in possession of defendant no.1 and  were in  possession of  trespassers. Learned Trial judge took  the view  that the application for amendment was not a  bone fide  on and  it was  moved only  with a view to protract the  proceedings as  the suit  was at  the stage of trial by  then. learned  Trial Judge  was  not  inclined  to accept the  reasons put forward for moving such an amendment application at  such a  late stage  and that too for getting out of  the admissions  made by  defendant nos.  1 and  2 in connection with the relevant suit properties. The result was that the  amendment application  was  dismissed.  The  first defendant carried  the matter  in revision under Section 115 of the  Code of  Civil procedure  (‘CPC’)  before  the  High Court. Learned  single Judge of the High Court who heard the revision application  was of  the view  that it  was settled legal  position   that  admissions  made  earlier  could  be explained and  could be  given a  go by in appropriate cases and as  defendant no.1  wanted  to  go  behind  his  earlier admission which  amounted to  an inconsistent  stand on  his part, such  an inconsistent stand in written statement could not be  said to  be prohibited  by the  procedural law.  For arriving at  that conclusion  of his,  reliance was paced on some of the judgements. of this Court to which our attention was invited  by the  learned counsel  for the respondents in support of  the  judgment  and  to  which  we  will  make  a reference hereafter.  Resultantly,  the revision application moved by  the respondent was allowed by the High Court. That is how the plaintiff is before us in this appeal.      In our  view, the  order passed by the High Court under Section 115, CPC,   allowing    withdrawal     of    earlier admissions of  defendant  nos.1  and  2  in  their  original written statement  about 5  out of  7 items  of Schedule  -A properties cannot  be sustained.  The reason  is obvious, so

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far  as   Schedule-A  properties  were  concerned,  a  clear admission was  made by defendant nos. 1 and 2 in their joint written statement  in 1993  that 7 properties out of 10 were joint family  properties wherein  the  plaintiff  had  1/3rd share and  they had 2/3rd undivided share. Once such a stand was taken,  naturally it  must be  held that  there  was  no contest between  the  parties  regarding  7  items  of  suit properties  in   Schedule-A.  The   learned   Trial   Judge, therefore, was  perfectly justified  in framing  Issue  No.2 concerning only  remaining three  items for  which there was dispute between the parties. In such a situation under order XV Rule  1  of  CPC  the  plaintiff  even  would  have  been justified in  requesting the  court to  pass  a  preliminary decree forthwith  qua these 7 properties. The said provision lays down  that, where  at the  first hearing  of a  suit it appears that the parties are not at issue on any question of law of  fact, the Court may at once pronounce the judgment’. Even that  apart, the defendant-respondents did not think it fit to  move any  amendment application  for getting  but of such admission  till the  plaintiff moved an application for appointment  of   receiver  regarding   admitted  items   of properties. It  is only  thereafter that the application for amendment was  moved. Learned  Trial Judge was right when he observed that  even the  grounds made out in the application were not  justified. Consequently,  there is  no question of taking inconsistent  stand which  would  not  have  affected prejudicially the  plaintiff as  wrongly assumed by the High Court. We also fail to appreciate how the decisions on which strong reliance  was placed  by the  learned counsel for the respondents can  be of any assistance to him. We may briefly refer to them.      In the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) Through LRs. and others [1995 Supp. (3) SCC 179] the  plaintiff had filed a suit claiming that defendant was a  licensee whose licence was terminated and, therefore, possession under  Section 41  of the presidency small Causes Court. Act  Should be  granted to  him The defendant earlier took up  a stand  that he  was a  joint  tenant  along  with others. Subsequently  he tried  to rely upon Section 15-A of the Bombay Rents, Hotel and Lodging House Rates control Act, 1947 by  submitting that  he was  a  licensee  for  monetary consideration who  was deemed  to be  a tenant  as  per  the provisions of  the said section. This Court held that such a defence which  is inconsistent could have been validly taken by the defendant. It has to be appreciated that in that case even though  inconsistent stand was permitted to be taken by the defendant,  the stand by itself did not seek to displace any admission  on the part of the defendant in favour of the plaintiff. The  defendant from  the inception contended that the plaintiff’s  suit should  be dismissed but the ground on which dismissal  was claimed  was sought to be changed by an alternative plea.  Therefore, there  was no  question of any prejudice to the plaintiff if such an inconsistent stand was allowed. That  is how  this Court  in the aforesaid decision held that  such amendment  in written  statement could  have been granted.  Such is  not the  case before us. Here if the amendment is  granted, the  whole case  of the plaintiff qua admitted joint  family properties would get displaced as the defendants themselves  had in clear terms admitted that in 7 items  of  properties  in  Schedule-A  plaintiff  had  1/3rd undivided interest.  On that  basis even  preliminary decree could have  been passed  by the court at that stage. As that right which  had accrued to the plaintiff, as noted earlier, would be irretrievably last if such amendment is allowed qua five of  these seven  items in  Schedule-A of the plaint for

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which by  the impugned amendment the earlier admissions were sought to be recalled.      Our attention was also invited to another decision of a bench of  two learned  judges of  this Court  in the case of Akshaya Restaurant  v. P.  Anjanappa and another [1995 Supp. (2) SCC 303]. In that case the plaintiff had filed a suit on the basis  of an  agreement of  sale  entered  into  by  the defendant with  the plaintiff  agreeing  to  sell  the  suit property for a sale consideration of Rs. 29,87,000/- on 25th January 1991.  The defendant  in the  written statement  had earlier stated  that it  was true that the defendant entered into such  an agreement  but by an amendment an averment was sought to  be introduced  in the  written statement  to  the effect that  it is  incorrect to  state that  the  defendant agreed to  enter into agreement of sale. it is true that the defendant had  entered into  an agreement with the plaintiff on 25th  January 1991 but it was for development of the suit schedule land  for the  mutual benefit  of the parties. This amendment was held to be justified by this Court.      Now it  is easy  to visualize  on the facts before this Court in the said case that the defendant did not seek to go behind his  admission that  there was  an agreement  of 25th January 1991 between the parties but the nature of agreement was sought  t be  explained by  him by  amending the written statement by submitting that it was not agreement of sale as such but  it was  n agreement  for development  of land. The facts  of  the  present  case  are  entirely  different  and consequently the  said decision  also cannot  be of any help for the learned counsel for the respondents. Even that apart the said  decision of  two learned judges of this Court runs counter to  a decision of a Bench of three learned judges of this court  in the case of Modi Spinning & Weaving Mills Co. Ltd. &  Anr. v.  Ladha Ram & Co. [(1977) 1 SCR 728]. In that case Ray,  CJ., Speaking  for the  Bench had to consider the question whether  the defendant  can be allowed to amend his written statement by taking an inconsistent plea as compared to the  earlier plea  which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which  would   displace  the  plaintiff  complete  from  the admissions made  by the defendants in the written statements cannot be  allowed. If  such amendments  are allowed  in the written statement plaintiff will be irretrievably prejudiced by being  denied the opportunity of extracting the admission from the  defendants. In  that case  a suit was filed by the plaintiff for  claiming a  decree for Rs. 1,30,000/- against the defendants.  The defendants  in their  written statement admitted that by virtue of an agreement date 07th April 1967 the  plaintiff  worked  as  their  stockist-cum-distributor. After three  years the defendants by application under order Vi  Rule   17  sought  amendment  of  written  statement  by substituting paragraphs  25 and  26 with  a new paragraph in which they took the fresh plea that plaintiff was mercantile agent cum-purchaser,  meaning  thereby  they  sought  to  go behind their  earlier admission that plaintiff was stockist- cum-distributor. Such  amendment was  rejected by  the Trial Court and  the said rejection was affirmed by the High Court in Revision.  The said decision of the High Court was upheld by this  Court by observing as aforesaid. This decision of a Bench of  three learned judges of this the written statement contains  an  admission  in  favour  of  the  plaintiff,  by amendment such admission of the defendants cannot be allowed to be  withdrawn if  such withdrawal would amount to totally displacing the  ace of  the plaintiff  and which would cause him irretrievable  prejudice.  Unfortunately  the  aforesaid decision of three member Bench of this Court was not brought

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to the  notice of  the Bench  of  two  learned  judges  that decided the  case in  Akshaya  Restaurant  (supra).  In  the latter case  it was  observed by  the Bench  of two  learned judges that  it was  settled law that even the admission can be explained  and even  inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant  (supra) proceed  on an assumption tat it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However the  aforesaid decision of the three member Bench of this Court  in Modi  Spinning (supra)  is to the effect that while granting  such  amendments  to  written  statement  no inconsistent or  alternative plea can be allowed which would displace the  plaintiff’s case  the cause  him irretrievable prejudice.      Consequently it  must be  held that  when the amendment sought in  the written  statement was  of such  nature as to displace the  plaintiff’s case  it could  not be  allowed as ruled by a three member Bench of this Court. this aspect was unfortunately not  considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view  qua such  admission in  written statement, it must be held that it was per incuriam being rendered without being given  an opportunity to consider the binding decision of a three member Bench of this Court taking a diametrically opposite view.      We were then taken to another decision of this Court in the case  of Panchdeo  Narain Srivastava  v. km. Jyoti Sahay and another  [ 1984  (Supp.) SCC  594].  In  that  case  the plaintiff  was   held  entitled   to  amend  his  plaint  by submitting that  though earlier he stated that the defendant was uterine  brother, the  plaintiff  by  amendment  in  his plaint could  submit that  the defendant was his brother and the word  ‘uterine’ could  be dropped. Even in that case the main case  put forward  by the plaintiff did not get changed as the  plaintiff wanted  submit that  the defendant was his brother. whether the was uterine brother or real brother was a question  of decree and depended on the nature of evidence that may be led before the Court. Therefore, the deletion of word ’uterine’  was not  found to  be displacing the earlier case of  the plaintiff.  On the  facts of  the present  case also,  therefore,   the  aid   decision  cannot  be  of  any assistance to the learned counsel for respondents.      In our  view, therefore,  on the facts of this case and as  discussed   earlier,  no   case  was  made  out  by  the respondents, contesting defendants, for amending the written statement and  thus attempting  to go behind their admission regarding 5  out of  7 remaining  items  out  of  10  listed properties in  Schedule-A of  the plaint. However, so far as Schedule-B properties  are concerned from the very inception the defendants’ case qua those properties was that plaintiff had no  interest therein.  By proposed amendment they wanted to  introduce   an  event   with  reference  to  those  very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely  or prejudicially  affected the  case  of  the plaintiff or  displaced any  admission  on  their  part  qua Schedule-B properties  which might  have resulted  into  any legal right in favour of the plaintiff. Therefore, so far as Schedule-B properties  were concerned,  the amendment  could not be  found fault  with. Hence exercising the powers under Article 136  of the  Constitution of  India we  would not be inclined to  interfere with that part of the decision of the High Court tallowing the amendment in the written statement, even though  strictly speaking  High Court  could  not  have

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interfered with  even this  part of  the order under Section 115, CPC.      In the  result, this  appeal  is  partly  allowed.  The respondents’ application  for amending the written statement in so far as it sought to withdraw earlier admission about 5 properties out of the remaining seven items of Schedule-A of the plaint shall stand dismissed. However, order regarding a part of  the application  for amending the written statement qua Schedule-B  properties, which  was allowed  by the  High Court will remain untouched. No costs.