http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  2019 of 2007

PETITIONER: Usha Balashaheb Swami & Ors

RESPONDENT: Kiran Appaso Swami & Ors

DATE OF JUDGMENT: 18/04/2007

BENCH: Tarun Chatterjee & R.V.Raveendran

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 2019 OF 2007 [ Arising out of SLP {c} No.3366 of 2006 ]

TARUN CHATTERJEE, J.

Leave granted. This appeal is directed against the order dated            3rd October 2005 of the High Court of Judicature at Bombay  in Writ Petition No 2390 of 2005 whereby the order passed  by the Civil Judge, Senior Division, Kolhapur in Special Civil  Suit No. 503 of 1996 was set aside.

The plaintiff, who is the respondent no. 1 in the present  appeal, (hereinafter called the "plaintiff") has instituted a  suit for partition and separate possession of the suit  properties as fully described in Para 1 of the plaint on the  allegations stated in brief as follows :-

The suit properties originally belonged to one  Veersangayya (since deceased).  On his death, Appasao  (since deceased) and Balasao (since deceased) came to  inherit the suit properties.  The appellants who are  defendants 8 to 14 in the suit are the heirs and legal  representatives of Balasao (since deceased).  The Plaintiff  inherited one half share of the suit properties jointly with  defendant nos. 1 to 7, on the death of Appasao. Since the  appellants had refused to partition the suit properties and  deliver separate possession, the plaintiff filed the suit for  partition and possession.  

The defendant nos. 1 to 7 who are respondent nos. 2 to  8 in this appeal entered appearance in the suit and filed  their written statement supporting the case of the plaintiff.   After entering appearance in the suit, the appellants on    28th February, 2003 filed their written statement in which  they admitted that the plaintiff with defendant No.1 to 7  were entitled to one half share in the suit properties.   

Initially, an application for amendment of the written  statement was filed by the appellants on 18th June, 2003,  which was contested by the plaintiff. The said application  was allowed by the Civil Judge, Senior Division, Kolhapur,  but subsequently on a writ application filed before the High  Court at the instance of the plaintiff, the order allowing  amendment was set aside and the application for  amendment was rejected.  However, liberty was given to the  appellants to file a fresh application for amendment of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

written statement.

Pursuant to such liberty, a fresh application for  amendment of the written statement was filed on              12th March, 2004 by the appellants, which was also  contested by the plaintiff.  

In the application for amendment of the written  statement the appellants had sought to add that the plaintiff  and defendant Nos.2 to 7 could not acquire right, title and  interest in the joint family properties, as they were the  illegitimate children of the deceased Appasao. In the  application for amendment, the appellants sought to allege  that Appasao (since deceased) was initially married to  defendant no. 1. As she had no issue, the said Appasao took  defendant No.2 as his second wife after coming into force of  the Hindu Marriage Act, 1955. The appellants alleged that  since the marriage between Appasao and defendant No.2 was  a nullity, neither defendant No.2 nor the plaintiff and  defendant Nos. 3 to 7 were entitled to claim any share in the  suit properties.            The plaintiff contested the application for amendment of  the written statement by filing a written objection in which the  plaintiff mainly sought rejection of the amendment of the written  statement on the ground that since the appellants in their  written statement had admitted that the plaintiff and defendant  Nos.1 to 7 were jointly entitled to half share of the suit  properties, they could not be permitted to withdraw such  admission by amendment of the written statement.          The learned Civil Judge, Senior Division, Kolhapur allowed  the application for amendment of the written statement and the  matter was carried in revision by the plaintiff by a writ petition  before the High Court. The High Court, by the impugned order,  had set aside the order of the trial court and rejected the  application for amendment of the written statement, inter alia,  on the ground that since the appellants had categorically  admitted in their written statement that the respondents were  entitled to half share in the suit properties, it was not  permissible for them to withdraw such admission by an  amendment of the written statement as that will amount to  totally displacing the case of the plaintiff causing irretrievable  prejudice to him.

In order to come to this conclusion, the High Court relied  on a decision of this Court in the case of Modi Spinning &  Weaving Mills Co. Ltd. v. Ladha Ram & Co. [1976(4) SCC  320]. According to the High Court, the decision in the case of  Modi Spinning & Weaving Mills Co. Ltd. (supra) was a clear  authority for the proposition that once a written statement  contained an admission in favour of the plaintiff, by amendment,  such an admission of the defendants, cannot be withdrawn and  if allowed, it would amount to totally displacing the case of the  plaintiff, causing irretrievable prejudice to him. Similarly relying  on another decision of this Court in the case of Heera Lal v.  Kalyan Mal & Ors. [1998 (1) SCC 278], the High Court held  that the amendment, if allowed, would displace the case of the  plaintiff and his right to get the partition decree and, therefore,  amendment was impermissible in law.           Dissatisfied with this order of the High Court, this Special  Leave Petition has been filed in respect of which leave has  already been granted.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

On behalf of the appellants, Mr. V.N. Ganpule, learned  senior counsel contended, at the first instance, that the question  of withdrawing admission made in written statement could not  arise as the appellants even after the amendment, have kept the  "admission" made in para 8 intact but only have added certain  additional facts which need to be proved by the plaintiff and  defendant nos. 1 to 7 to get their respective shares in the suit  properties alleged to have been admitted by the appellants in the  written statement. Secondly, it was contended that even  assuming that by such amendment, appellants sought to  withdraw the admission made by them in para 8 of the written  statement then also the High Court was grossly in error rejecting  the application for amendment of the written statement because  by such amendment, the appellants had only sought to explain  such admissions or in any case, the amendment would only  amount to raising an inconsistent plea which is permissible in  law in the case of amendment of written statement.  In support  of this contention, reliance was placed by Mr. Ganpule on the  case of Baldev Singh & Ors. v. Manohar Singh [2006 [6] SCC  498]. It was also submitted by Mr. Ganpule that the High Court  also fell in error in relying on the decision of this Court in the  case of Modi Spinning & Weaving Mills Co. Ltd. (supra) as the  said decision, in fact advances and supports the case of the  appellants. Finally it was argued that since the trial court has  allowed the amendment in its discretion, the High Court was not  justified in reversing the discretionary order of the trial court in  the exercise of its supervisory  jurisdiction under Article 227.  

The aforesaid submissions of the Learned Senior Counsel  appearing for the appellants were contested by the Learned  Senior Counsel Mr. Udey Lalit, appearing for the plaintiff.  Mr.  Lalit has contended that clear admissions made by the  appellants in their written statement admitting the rights of the  plaintiff cannot be allowed to be withdrawn by amendment of the  written statement as that would amount to totally displacing the  case of the plaintiff and cause the plaintiff irretrievable  prejudice. In support of this contention, Mr. Lalit also relied on  the decision of this court in the case of Modi Spinning &Weaving  Mills Co. Ltd  (supra) which was relied on by the High Court  while rejecting the application for amendment of the written  statement. He strongly contended that if such amendment was  allowed, admissions made by the appellants in Para 8 of their  written statement would be entirely washed out as a bare  perusal of the written statement would clearly show that the  appellants have admitted one-half share of the plaintiff and  defendant nos. 1 to 7 in the suit properties in their written  statement. Mr. Lalit also contended that the decision in Baldev  Singh’s case (supra) relied on by the learned counsel for the  appellants in support of his contention would not be applicable  in the facts of this case. Therefore Mr. Lalit contended that the  amendment of the written statement introducing an entirely  different and inconsistent case cannot be allowed as it would  displace the admission made in para 8 of the written statement  and deprive the plaintiff of a valuable right already accrued to  him on account of the admission.

Relying on the decision in the case of Heera Lal (supra) as  relied on by the High Court in the impugned order, Mr. Lalit  contended that the admission made in para 8 of the written  statement cannot be washed out by an amendment of the  written statement. Accordingly, Mr. Lalit invited us to hold that  the High Court was fully justified in rejecting the application for  amendment of written statement of the appellant in the exercise  of its power under Article 227 of the Constitution.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

Having heard the rival submissions of the learned counsel  for the parties and after considering the written statement as  well as the amendment of the written statement and the orders  passed by the High Court and the trial court in detail, we are of  the view that the High Court had fallen in error in rejecting the  application for amendment of the written statement.

Before dealing with the question whether the amendment  sought for was rightly rejected by the High Court or not, we may  first consider the principles under which amendments of  pleadings can be allowed or rejected. The principle allowing or  rejecting an amendment of the pleadings has emanated from     Order 6 Rule 17 of the Code of Civil Procedure, which runs as  under: "The Court may at any stage of the proceedings  allow either party to alter or amend his pleadings in  such manner and on such terms as may be just, and  all such amendments shall be made as may be  necessary for the purpose of determining the real  questions in controversy between the parties

Provided that no application for amendment  shall be allowed after the trial has commenced,  unless the Court comes to the conclusion that in  spite of due diligence, the party could not have  raised the matter before the commencement of trial"

                       (Underlining is ours)

From a bare perusal of Order 6 Rule 17 of the Code of Civil  Procedure, it is clear that the court is conferred with power, at  any stage of the proceedings, to allow alteration and  amendments of the pleadings if it is of the view that such  amendments may be necessary for determining the real question  in controversy between the parties. The proviso to Order 6     Rule 17 of the Code, however, provides that no application for  amendment shall be allowed after the trial has commenced  unless the court comes to a conclusion that in spite of due  diligence, the party could not have raised the matter before the  commencement of trial.  However, proviso to Order 6 Rule 17 of  the Code would not be applicable in the present case, as the trial  of the suit has not yet commenced.   

It is now well-settled by various decisions of this Court as  well as those by High Courts that the courts should be liberal in  granting the prayer for amendment of pleadings unless serious  injustice or irreparable loss is caused to the other side or on the  ground that the prayer for amendment was not a bonafide one.  In this connection, the observation of the Privy Council in the  case of Ma Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C.  249] may be taken note of. The Privy Council observed:

"All rules of courts are nothing but provisions  intended to secure the proper administration of  justice and it is, therefore, essential that they should  be made to serve and be subordinate to that  purpose, so that full powers of amendment must be  enjoyed and should always be liberally exercised,  but nonetheless no power has yet been given to  enable one distinct cause of action to be substituted  for another, nor to change by means of amendment,  the subject-matter of the suit."

         (Underlining is ours)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

It is equally well settled principle that a prayer for  amendment of the plaint and a prayer for amendment of the  written statement stand on different footings. The general  principle that amendment of pleadings cannot be allowed so  as to alter materially or substitute cause of action or the  nature of claim applies to amendments to plaint. It has no  counterpart in the principles relating to amendment of the  written statement.  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.   

Such being the settled law, we must hold that in the  case of amendment of a written statement, the courts are  more liberal in allowing an amendment than that of a plaint  as the question of prejudice would be far less in the former  than in the latter case [see B.K. Narayana Pillai v.   Parameswaran Pillai  (2000(1) SCC 712) and Baldev  Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)].    Even the decision relied on by the plaintiff in Modi Spinning  (supra) clearly recognises that inconsistent pleas can be  taken in the pleadings. In this context, we may also refer to  the decision of this Court in Basavan Jaggu Dhobi v.  Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3)  SCC 179].  In that case, the defendant had initially taken up  the stand that he was a joint tenant along with others.  Subsequently, he submitted that he was a licensee for  monetary consideration who was deemed to be a tenant as  per the provisions of Section 15A of the Bombay Rents, Hotel  and Lodging House Rates Control Act, 1947. This Court held  that the defendant could have validly taken such an  inconsistent defence. While allowing the amendment of the  written statement, this Court observed in Basavan Jaggu  Dhobi’s case (supra) as follows :- "As regards the first contention, we are afraid  that the courts below have gone wrong in holding  that it is not open to the defendant to amend his  statement under Order 6 Rule 17 CPC by taking a  contrary stand than was stated originally in the  written statement. This is opposed to the settled  law open to a defendant to take even contrary  stands or contradictory stands, the cause of  action is not in any manner affected. That will  apply only to a case of the plaint being amended  so as to introduce a new cause of action."    As we have already noted herein earlier that in allowing the  amendment of the written statement a liberal approach is a  general view when admittedly in the event of allowing the  amendment the other party can be compensated in money.   Technicality of law should not be permitted to hamper the Courts  in the administration of justice between the parties.  In the case  of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR  1957 SC 357], this Court observed "that the Courts are more  generous in allowing amendment of the written statement as the  question of prejudice is less likely to operate in that event".  In that  case this Court also held "that the defendant has right to take  alternative plea in defence which, however, is subject to an  exception that by the proposed amendment the other side should  not be subjected to serious injustice."

Keeping these principles in mind, namely, that in a  case of amendment of a written statement the Courts would  be more liberal in allowing than that of a plaint as the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

question of prejudice would be far less in the former than in  the latter and addition of a new ground of defence or  substituting or altering a defence or taking inconsistent  pleas in the written statement can also be allowed, we may  now proceed to consider whether the High Court was  justified in rejecting the application for amendment of the  written statement.  

As noted herein earlier, Mr. Lalit placed strong reliance on  the case of Heera Lal (supra) to contend that the admission made  by the appellants in the original written statement in the facts  and circumstances of the case could not at all be taken away. In  our view, the factual position of the case before us and the facts  involved in that decision are different. In Heera Lal’s case (supra)  a definite stand was taken that the plaintiff had a share in seven  out of the ten scheduled properties as they belonged to the  plaintiff and the defendants 1 and 2 as joint family properties.  However, the defendants moved an application for amendment of  the written statement, which was not allowed by the trial court.  While dealing with this nature of amendment, in that decision,  this Court observed that it was wrong on the part of the High  Court to assume that by taking an inconsistent stand, the  respondents would prejudicially affect the appellant’s case. The  Court observed:

"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 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 l/3rd share and they  had 2/3rd undivided share. Once such 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 or of fact, the Court may at once  pronounce the judgment’. Even that apart, the  defendants-respondent did not think it fit to  move any amendment application for getting out  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 ground made out in the  application were not justified. Consequently,  there is no question of taking inconsistent stand  which would not have affected pre-judicially the  plaintiff as wrongly assumed by the High Court."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

Keeping the aforesaid observations and also the facts  involved in Heera Lal’s case (supra) in mind, we are of the  view that the decision in that case may not be of any help to  respondents.  

Coming back to the facts of the present case regarding  amendment of the written statement, we find that the  appellants had stated in para 8 of their original written  statement "that plaintiff and defendant nos. 1 to 7 have     got = share and defendant nos. 8 to 14 have got = share in  all the family properties" and that the maternal aunts have  also got share. By seeking incorporation of paras 8A and 8B  and substitution of para 8 in the written statement, the  appellants have maintained the admissions made by them in  para 8 of the written statement but added a proviso or  condition to the admission. Therefore, it was not a case of  withdrawal of the admission by the appellants by making the  application for the amendment of the written statement but  in fact such admission was kept intact and only a proviso  has been added. This, in our view, is permissible in law and  the question of withdrawing the admission made in para 8 in  its entirety in the facts as noted herein above, therefore,  cannot arise at all.  

Since we have already held that in the case of  amendment of a written statement, the defendant is entitled  to take new defence and also to plead inconsistent stand and  in view of our discussions made herein above that by making  the application for amendment of the written statement,  admission was not at all withdrawn by the appellants nor a  totally inconsistent plea was taken by the appellants in their  application for amendment of the written statement, the  High Court had failed to appreciate that by the proposed  amendment, the appellants were not withdrawing their  admission in respect of the half share in the ancestral  property rather they only added that the plaintiff and  defendant nos. 3 to 8 could be entitled to such share if they  proved to be the legitimate children of Appasao (since  deceased) who was entitled to half share in the property of  late Veersangayya. That apart, it appears from the record  that the written statement filed by the appellants was before  the death of defendant no.1 (first wife of Appasao). After the  death of defendant no.1, when plaintiff and defendant nos. 2  to 8 claimed themselves as heirs and legal representatives of  defendant No.1, the appellants sought amendment of the  written statement challenging the legitimacy of plaintiff and  defendant nos. 2 to 8. In view of the discussions made  herein above, we do not think that it was impermissible in  law for the appellants to seek amendment of the written  statement in the manner it was sought for.

Therefore, it was neither a case of withdrawal of  admission made in the written statement nor a case of  washing out admission made by the appellant in the written  statement. As noted herein earlier, by such amendment the  appellant had kept the admissions intact and only added  certain additional facts which need to be proved by the  plaintiff and defendant no.2 to 8 to get shares in the suit  properties alleged to have been admitted by the appellants in  their written statement. Accordingly, we are of the view that  the appellants are only raising an issue regarding the  legitimacy of plaintiff and defendant nos. 3 to 7 to inherit the  suit properties as heirs and legal representatives of the  deceased Appasao. Therefore, it must be held that in view of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

our discussions made herein above, the High Court was not  justified in reversing the order of the trial court and rejecting  the application for amendment of the written statement.   

As noted herein earlier, Mr. Lalit while inviting us to  reject the application for amendment of the written  statement as was done by the High Court had placed strong  reliance on the case of Modi Spinning (supra). 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 dated  7th April, 1967 the plaintiff worked as their stockists-cum  distributor. After three years the defendants by application  under Order 6,  Rule 17 of the Code sought amendment of written  statement by substituting paras 25 to 26 with a new para in  which they took the fresh plea that plaintiff was a mercantile  agent cum purchaser, meaning thereby that they sought to  go beyond their earlier admission that the plaintiff was a  stockist-cum-distributor. In our opinion, the present case  can be distinguished from that of Modi Spinning case. In that  case, the pleadings that were being made by the plaintiff for  amendment were not merely inconsistent but were resulting  in causing grave and irretrievable prejudice to the plaintiff  and displacing him completely. In paragraph 10 of this  decision this Court also appreciated that inconsistent pleas  can be made in the pleadings but the effect of substitution of  paragraphs 25 and 26 in that decision was not making  inconsistent and alternative pleadings but it was seeking to  displace the plaintiff completely from the admissions made  by the defendants in the written statement.  In the facts of  that decision this Court further held that if such  amendments were allowed, the plaintiff will be irretrievably  prejudiced by being denied the opportunity of extracting the  admission from the defendants.  That apart in that decision  the High Court also rejected the application for amendment  of the written statement and agreed with the trial court.   This decision in the case of Modi Spinning would not stand in  the way of allowing the application for amendment of the  written statement as the question of admission by the  defendants made in the written statement, more particularly  in paragraph 8 of the written statement, was not at all  withdrawn by the amendment but certain paragraphs were  added inviting the plaintiff and defendants 1 to 7 to prove  their legitimacy on the death of Appaso.  That being the  position, we do not think that Modi Spinning case will at all  stand in the way of allowing the application for amendment  of the written statement.  It is true that in the case of  Basavan Jaggu Dhobi this Court, in the facts of that case,  held that it would not be open to a party to wriggle out of  admission as admission is a material piece of which would  be in favour of a person who would be entitled to take  advantage of that admission.  In the present case, admission  made in Para 8 of the written statement was not at all  withdrawn but only a rider and/or proviso has been added  keeping the admission in tact.  In that decision also this  Court has appreciated the principle that even the admission  can be explained and inconsistent pleas can be taken in the  pleadings and thus amendment of the written statement can  be allowed. In our opinion, as noted herein earlier, in the  present case, the amendment would not displace the case of  the plaintiff, as it would only help the court to decide  whether the respondents are eligible to the said share in the  property on proof of their legitimacy for which no  irretrievable prejudice would be caused either to the plaintiff  or to defendant nos. 2 to 8. Accordingly, we do not think that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

Basavan Jaggu Dhobi could be applied in the facts of this  case, which is clearly distinguishable.  

Again in the case of Akshaya Restaurant v. P.  Anjanappa [1995 [Supp] (2) SCC 303] this Court held that  even an admission in the pleadings can be explained and  inconsistent pleas can be taken in amendment petition even  after taking a definite stand in the written statement.   However, in that decision the amendment of the written  statement was rejected mainly on the ground that  respondents had entered into an agreement for development  of the land for mutual benefit of the parties and thereby the  trial court came to a conclusion that it was not open to the  respondent to explain whether the agreement was one of sale  or for mutual benefit since the agreement was sub silentio in  that behalf.  In that decision this Court further held that the  High Court in the exercise of power under Section 115 of the  Code of Civil Procedure committed no material irregularity in  permitting amendment of the written statement.  This Court  while considering the question whether the admission can be  withdrawn or not observed as follows:

"It is settled law that even the admission can be  explained and even inconsistent pleas could be  taken in the pleadings. It is seen that in  paragraph 6 of the written statement definite  stand was taken but subsequently in the  application for amendment, it was sought to be  modified as indicated in the petition. In that view  of the matter, we find that there is no material  irregularity committed by the High Court in  exercising its power under Section 115 C.P.C. in  permitting amendment of the written statement."

          (Underlining is ours)

For the reasons aforesaid, we are unable to sustain the  judgment of the High Court rejecting the application for  amendment of written statement on the ground that if such  amendment was allowed it would seriously prejudice the  plaintiff. There is yet another aspect of the matter. The trial  court on consideration of the written statement as well as  the application for amendment of the written statement, in  its discretion allowed the application for amendment of the  written statement. The High Court ought not to have  reversed the said order of the trial court, rejecting the  application for amendment of the written statement, when  the trial court has exercised its discretion in allowing the  amendment of written statement on consideration of the  principles of law and the material on record.

For the reasons aforesaid, the appeal is allowed and the  order of the High Court rejecting the prayer for amendment  of the written statement is set aside. The application for  amendment of the written statement thus stands allowed.  The trial court is now directed to dispose of the suit at the  earliest possible time preferably within six months from the  date of communication of this order without granting any  unnecessary adjournment to either of the parties.  

There will be no order as to costs.