REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2537    OF 2009 (Arising out of SLP (C) No.2365 of 2008)

Sumesh Singh … Appellant

Versus

Phoolan Devi & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. The defendant in a suit praying for a decree to set aside a deed of

sale  purported  to  have  been  executed  by  the  8th  respondent  (original

defendant No.2) as a Power of Attorney holder of the original plaintiff

(her father), is before us aggrieved by and dissatisfied with a judgment

and  order  dated  24.10.2007  passed  by  the  High  Court  of  Himachal

Pradesh at Shimla dismissing a revision application filed before it from an

order dated 20.12.2005 of the learned trial judge allowing an application

for amendment of the written statement filed by the 8th respondent.

3. The following facts are not disputed :

The original plaintiff Sh. Babu was the owner of the suit land.  He

executed a Power of Attorney on or about  13.2.1998 in favour of one

Kartari  Devi  –  Respondent  No.8  (original  defendant  No.2).   The  8th

respondent executed a deed of sale on 3.3.1998 in favour of the original

defendant No.1 in the aforementioned capacity.  However, inter alia, on

the premise that the said Power of Attorney was illegal and the same had

been fraudulently obtained, original plaintiff filed a suit for declaration

before the Subordinate Judge, First Flass, Amb, District Una in the State

of Himachal Pradesh.

Indisputably, relying on or on the basis of the said deed of sale, the

appellant filed an application for partition before the Revenue Court of

the Tehsildar which was decided in his favour.  Possession of the land in

question  is  said  to  have  been  handed  over  by  the  Revenue  Officer.

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Appellant’s name was also entered in the Revenue Records.  On or about

3.5.2000, the 8th respondent filed a written statement raising various pleas

that the suit of the plaintiff be dismissed.   

In her written statement, the 8th respondent stated as under :

“6. That  after  plaintiff  waited  the  summons of  partition  case  and  enquired  from  the defendant No.1 but the defendant No.1 lingered on  the  matter  and  in  the  month  of  Jan  1999 started extended threats and proclaimed that the suit  land  has  been  sold  to  him  by  defendant No.2.   The  plaintiff  was  astonished  and approached  the  Halqua  Patwari.   The  Patwari Halqua  who  is  also  hand  in  glubs  with  the defendant  No.1  did  not  co-operated  nor provided  the  particulars  till  June  99  and  after obtaining  the certified  copies  it  has  transpired that  the  defendant  No.1  got  manufactured  a power  of  attorney  of  plaintiff  alleged  to  be executed  on  13.02.98  Regd.  No.41,  Sub- Registrar Amb in favour of defendant No.2.  At any rate even if any such power of attorney is proved to be bearing signatures of plaintiff, the plaintiff  never  give  any  power  of  attorney consciously  to  sell  or  alienate  his  property  to defendant No.2 and the power to the contrary in the alleged power of attorney was got entered as a  result  of  fraud,  mis-representation  taking advantage  of  old  age,  sickness,  illiteracy  of plaintiff  and  defendant  No.2,  physical  and mental  weakness  and  in  breach  of  trust  and confidence reposed in the defendants.  Actually, the  intention  of  defendant  No.1  in  active connivance  with  Halqa  Patwari  Revenues Officer and marginal witness was to pilfer away the property of plaintiff.   The plaintiff did not sell any property or never agreed to execute sale deed  qua  the  suit  land  to  defendant  No.1  nor ever received any consideration.  The allegedly sale deed No.202 dated 03.03.1998 alleged to be

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executed  by  defendant  No.2  is  contrary  as attorney of plaintiff  are and further  entries got repeated  by  defendant  No.1  in  his  favour  of back  of  plaintiffs  are  bogus,  fabricated documents  result  of  fraud,  mis-representation, undue influence without  consideration  without delivery  of  possession,  in  breach  of  trust  and confidence  reposed  in  defendants.   Moreover, the plaintiff had no necessity to sell the property and  was  incompetent  to  sell  being  landless person having meager holding.

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12. It  is,  therefore,  prayed  that  decree  for declaration to the effect that land measuring 0- 07-14  Hects  being  half  share  out  of  land measuring 0-14-28 Hects as fully detailed in the head note of  plaintiff  as owned and possessed by the plaintiff.  The defendants have no right, title or interests in the same.  The alleged power of  attorney  Regd.  No.41  dated  13.02.1998  is illegal, result of misrepresentation, fraud, breach of trust and confidence reposed on defendants, taking advantage of old age, sickness, physical mental weakness, illiteracy of plaintiff and does not in any (sic)  give right to defendant No.2 to deal with andalenate the properties  of plaintiff and  further  alleged  sale  deed  No.202  dated 3.3.1998 alleged to have executed by defendant No.2 in favour of defendant No.1 in respect of suit  land  and  subsequent  entries  in  favour  of defendant No.1 in the revenue record are wrong, illegal,  void,  baseless,  contrary  to  factual position without consideration, without delivery of  possession  and  in  breach  of  trust  and confidences reposed on defendants and result of fraud,  undue,  influence,  mis-representation fictitious  and  fabricated  one.   The  some gets have  not  binding  effect  on  the  right,  title  or interest  of  plaintiff  in  the  suit  land  and  for issuance  of  permanent  injunction  as  a consequential  relief  restraining  the  defendants from  interfering  in  any  manner  whatsoever raising  any  constructed,  taking  forcible

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possession,  cutting and  removing  trees,  taking the  suit  land,  in  any  manner  may  please  be passed  in  favour  of  plaintiff  and  against  the defendant  with  cost.   In the  alternative decree for possession of suit land may kindly be passed in favour of plaintiff and against defendant No.1 with cost and any other further relief to which plaintiff  is  found entitled  in the circumstances of  the  case may also  be awarded in  favour of plaintiff with cost.”

4. The  original  plaintiff  died  during  the  pendency of  the  said  suit.

The respondent Nos.1 to 7, being the legal heirs of the original plaintiff,

filed an application for bringing on record the legal representatives which

was  allowed.   It  is  stated  that  the  evidence  in  the  suit  stands  also

concluded.   

In  2004,  an  application  for  amendment  of  the  plaint  was  filed

which was allowed.  On or about 13.5.2005, the 8th respondent also filed

an application purported to be under Order VI Rule 17 of the Code of

Civil  Procedure.  The said application was allowed by the learned trial

judge by an order dated 20.12.2005, inter alia, opining :

“6. In  addition  to  it,  plaintiff  has  since deceased and defendant No.2 being daughter of plaintiff  also  claims  herself  to  be  Lrs.  of deceased plaintiff.  She, therefore, also wants to insert prayer to the effect that suit be decreed in favour  of  deceased  plaintiff  through  Lrs.  and defendant No.2.  The aforesaid amendment even if allowed would not change the position since there is specific issue which was framed as issue No.1 i.e.  if  power of attorney dated 23.2.1998 allegedly  executed  by  plaintiff  in  favour  of

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defendant  No.2  is  result  of  misrepresentation and  fraud.   The  plaintiff  has  to  affirmatively prove  the  allegations  of  fraud  and misrepresentation.  However, at the same time if stand being taken by defendant No.2 is allowed to be incorporated in the pleadings, it will also give  a  fair  chance  even  to  defendant  No.1  to justify  his  position  and  effectively  defend  the case coming against  him.  Hence, narration of facts  disclosed  in  application  as  a  whole  are such where rejection of application is unjust and unreasonable whereas if pleadings sought to be incorporated by defendant No.2 are allowed to be introduced in the pleadings that it  will also give fair chance to defendant No.1 to defend the case.  Hence, this application of defendant No.2 is  allowed.   Amended  written  statement  is already on record.  It be tagged with case filed.”

5. Appellant  filed  a  revision  petition  thereagainst  before  the  High

Court which by reason of the impugned order has been dismissed opining

that as the application for amendment filed by the plaintiff was allowed

by an order dated  20.12.2005 which  having not  been challenged;   the

defendants  had  a  right  to  file  an  amended  written  statement  to  the

amended  plaint.   It  was  observed  that  the  said  right  to  file  amended

written statement to the amended plaint is independent of any right which

might accrue to the respondent to file an amended statement pursuant to

the permission granted to do so in an application seeking amendment of

the written statement.   

6. Mr.  P.S.  Rana,  learned  counsel  appearing  on  behalf  of  the

appellant, would submit that keeping in view the stand taken by the 8th

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respondent in her original written statement in terms whereof she prayed

for  dismissal  of  the  suit,  again  at  a  later  stage,  should  not  have  been

permitted to turn round and take a plea that the suit filed by her father

should be decreed.  It is not in dispute that the 8th respondent is one of the

heirs and legal representatives of the original plaintiff.  On the death of

the original  plaintiff,  his  legal  representatives  were brought  on record.

Certain  subsequent  events  occurred.   Amendment  of  the  plaint  was

carried out  by an order dated 20.12.2005.  The correctness of the said

order was not in question.

7. The  8th respondent  along  with  the  other  heirs  and  legal

representatives of the original plaintiff claimed to be in possession of the

property.

8. It is pursuant to the liberty granted that application for amendment

in  the  written  statement  was  allowed.   The  learned  Trial  Judge  while

passing its order dated 20.12.2005 opined that the 8th respondent never

admitted  that  she  had sold the  suit  land on the basis  of  the purported

Power of Attorney of plaintiff.  It was held :

“During  the  pendency  of  suit,  application  has been filed by defendant  No.2 alleging that the she never sold suit land nor even received any consideration.  According to her, plaintiff never gave or  executed  any power  of  attorney dated 13.2.1998 in her favour.  She further alleges that she never went  to  sub-Registrar  in  connection with power of attorney dated 13.2.1998 or sale deed  dated  3.3.1998.   She  claims  to  be  an

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illiterate lady.  These facts are, therefore, sought to be incorporated in written statement.”

9. It is true that ordinarily, an amendment of pleadings should not be

allowed  by  reason  whereof  a  party  to  the  suit  would  resile  from the

admission made by him in the same proceedings at an earlier stage.  This

aspect of the matter has been considered in Gautam Sarup v. Leela Jetly

& Ors. [(2008) 7 SCC 85] wherein it was held :

“28. 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.”

10. In this case, however, the averments made in the plaint have merely

been denied.  There is no categorical or unequivocal admission as such.

It  is,  thus,  not  a  case  where  a  party  to  the  suit  is  resiling  from his

statement made in the earlier part of the proceedings.  The learned trial

Judge, in a case of this nature, had not or could not have taken recourse to

the provisions of Order VIII Rule 3 and Order VIII Rule 5 of the Code of

Civil Procedure.  An issue has been framed by and between the plaintiff

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and the contesting defendant.  The said issue is required to be determined.

Parties are required to adduce evidence thereupon.   

11. Mr. Rana would submit that having regard to the proviso appended

to  Order  VI,  Rule  17 of  the  Code of  Civil  Procedure,  the  amendment

could not have been allowed.  The said proviso has been added by Act 22

of 2002 w.e.f 1.7.2002.   

12. By  reason  of  Section  16(2)(b)  of  the  Code  of  Civil  Procedure

(Amendment) Act, 2002, the amendments carried out therein shall only

apply to in respect of the suits which were filed thereafter.  {See  State

Bank of Hyderabad v.  Town Municipal  Council [(2007) 1 SCC 765]}.

As the suit had been filed in the year 1999, the proviso appended to Order

VI, Rule 17 shall not apply.  

13. In the peculiar facts and circumstances of this case, we do not think

that any useful purpose would be served in interfering with the impugned

judgment at this stage particularly having regard to the observations made

by the High Court.  The appeal, therefore, is dismissed without any order

as to costs.

..…………………… ……..…J.     

[S.B. Sinha]

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..………………………….. …J.     

     [P. Sathasivam] New Delhi; April 15, 2009

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