1. Petitioner by way of present petition filed under Article 227 of the Constitution of India calls in question the legal tenability of the order dated 12.5.2010 passed by Civil Judge, Class I, Maihar, District Satna in Civil Suit No. 6A/2007; whereby application preferred by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure seeking replacement of the entire written statement filed by him was rejected.
2. The petitioner is defendant No. 2 in a suit filed by respondent No. 1/plaintiff. The suit is for declaration and for permanent injunction in respect of suit property which is a house situated in Ward No. 12, Satna Road over a land bearing number 14/4/4 admeasuring 30 x 58 = 1740 sq.ft.
3. On being noticed in the suit, petitioner/defendant No. 2 entered his appearance through one Counsel Shri Arjun Singh and filed the written statement duly verified by him. The said written statement contained signature of the petitioner on each page of it. Thereafter, the Trial Court framed issues on the basis of respective pleadings and matter proceeded further when respondent No. 1/plaintiff examined himself and closed his evidence.
4. It is at this stage that an application was filed by the petitioner defendant No. 2 under Order 6 Rule 17 seeking replacement of the entire written statement on the ground that the same was filed by his Counsel without his knowledge and the pleadings therein were contrary to fact.
3. Pertinent it is to note that in an application preferred by the petitioner/defendant No. 2 there is no allegation of fraud being committed on him nor is there any allegation that the learned counsel who was appearing for petitioner before the Trial Court was being planted by the opposite party. The application which the petitioner/ defendant No. 2 preferred under Order 6 Rule 17 was to the extent that written statement which was filed containing certain admission on his behalf was never read over to him and his signatures were obtained without apprising of the contents therein.
5. The trial court considering the entire material on record observed:
"iz d j.k ds voyks d u ls ;g Li"V gS fd iz f roknh OE0&2 us vius tokc nkok 7&12&07 dks iz L rq r fd;k Fkk iw o Z ds tokc nkok ds va r es a iz f roknh OE0&2 us ;g dgk Fkk fd oknh dk nkok Lohdkj ;k vLohdkj fd, tkus ij dks bZ vkifRr ugha gS A vkS j Hkfo"; es a Hkh dks b Z vkifRr ugha gks x hA iw o Z ds tokc nkos es a ;g Hkh mYys [ kuh; gS fd iz f roknh OE0&2 us yxHkx lHkh rF;ks a dks Lohdkj fd;k FkkA
ijUrq orZ e ku vkos n u ds lkFk tks la ' kks / ku iz L rkfor fd;k x;k mles a eux<+ a r rF;ks a dks crk;s gq , mls fujLr fd, tkus dh iz k FkZ u k dh xbZ gS A iw o Z ds tokc nkos ds foijhr lHkh rF;ks a ds ba d kj fd;k x;k gS blls ;g rks li"V gS fd iz f roknh ,d iz d kj ls u;k tokc nkok iz L rq r djuk pkgrk gS A blhfy, orZ e ku vkos n u ds lkFk la ' kks f /kr tokc nkok iz L rq r dj fn;k gS A ;fn iz d j.k dks ns [ kk tk, rks oknh dk lk{; lekIr gks pq d k gS rFkk fiNyh is ' kh ij iz f roknh lk{; ds fy, va f re volj fn;k x;k gS A ,s l h fLFkfr es a ;g Li"V gS fd orZ e ku vkos n u lnHkkfod ugha gS rFkk mls foyEc ls is ' k djus ds fy, iz L rq r fd;k x;k gS A blls nkos dh iz N fr es a iw j h rjg ifjorZ u gks r k gS A "
6. Questioning the correctness of finding arrived at by the Trial Court, it is contended by learned counsel for petitioner/defendant No. 2 that, it is within the right of defendant to even raise inconsistent plea in the written statement and the amendment which was being sought was in the category of inconsistent plea, it is urged that the trial court committed grave error in rejecting the same.
7. The petitioner has placed reliance of judgment rendered by Supreme Court in Baldev Singh and others v. Manohar Singh and another (2006) 6 SCC 498 and Andhra Bank v. ABN AMRO Bank N.V. and others (2007) 6 SCC 167 to bring home the submissions that, it is permissible to cause an amendment in the written statement even at belated stage and is also permissible to raise inconsistent plea in the written statement. It is urged that since the trial court fell into patent error in rejecting the application seeking amendment in the written statement, the same may be rectified by setting aside the said order and by allowing the petitioner/defendant No. 2 to substitute a fresh written statement.
8. Learned counsel appearing for respondent contradicts the submissions put-forth on behalf of the petitioner. It is urged that, the petitioner/defendant No. 2 had duly engaged his counsel and the written statement filed by him contained his signatures on each page of it. It is also contended that the petitioner/defendant No. 2 had personally appeared in Court along with his counsel on 4.1.2008 after filing the written statement, which was filed on 7.12.2007. It is urged that the petitioner was well aware of the stand he had taken in his written statement, as no objection was raised when the issues were settled by the trial court.
9. It is further contended that it is only when the evidence of the respondent/plaintiff was over that the petitioner/defendant No. 2 came up with a story regarding written statement being filed by his counsel without his consent and the signatures were obtained without reading over the substance therein. It is urged that, the petitioner cannot be allowed to take a U turn by replacing the entire written statement which will cause grave prejudice to the respondent/plaintiff. It is accordingly urged that, the petition being devoid of substance deserves to be dismissed.
10. Heard the counsel for the parties at length. Indisputably, the written statement filed by the petitioner/defendant No. 2 on 7.12.2007 contained his signatures on each page of written statement. The petitioner has also verified the pleadings and has put his signatures thereon which is not denied. The petitioner after filing of written statement also personally appeared before the trial court on 4.1.2008 even then no plea was taken by him in respect of the written statement filed by him. Furthermore, no objection has been raised by the petitioner when the issues were settled. It was only after when the respondent plaintiff has examined himself, that the petitioner/defendant No. 2 came up with the plea that the written statement filed by him was not proper and wanted to replace the same by a fresh written statement with entirely new pleas therein. True it is that, the amendment in a written statement can be sought even at belated stage as has been observed by their Lordships in Andhra Bank (supra). However, in the same very case it has been observed by their Lordships that "it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken."
11. In the case at hand the petitioner/defendant No. 2 by way of application under Order 6 Rule 17 CPC 1908 intends to replace the entire written statement with new plea. Whereas, vide earlier written statement the petitioner/defendant No. 2 has expressly admitted in paragraph 12 of his written statement filed on 7.12.2007 that " vr,o oknh dk nkok Lohdkj vFkok vLohdkj fd;s tkus ij iz f roknh OE0&2 dks u rks dks b Z vkifRr gS vkS j u gh Hkfo"; es a dks b Z vkifRr gks x hA " True it is that, the defendants are at liberty to take inconsistent plea in the written statement which can also be brought by way of an amendment as is observed in Baldev Singh and others (supra) wherein it is held that "inconsistent pleas can be raised by the defendants" (paragraphs 15 and 16). However, whether the said proposition would also be true in case where the defendant intends to withdraw the admission which he had tendered in written statement by substituting such written statement with a fresh one has been answered in negative by three Judges Bench of the Supreme Court in M/s. Modi Spinning & Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram and Co. [(1976) 4 SCC 320] wherein their Lordships were pleased to observe:
"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court."
12. In view of the law above and the facts of the present case we are of the considered opinion that the trial court did not falter in rejecting the application preferred by the petitioner/defendant No. 2 seeking replacement of written statement with entire new facts. In view of above petition fails and is hereby dismissed. However, no costs.