(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 06.11.2015, passed by the Senior Civil Judge and JMFC on IA.No.19 in OS No.59/2012, produced at Annexure-F.)
1. This petition is filed by first defendant before the trial Court challenging the order dated 6.11.2015, dismissing I.A.19 filed by him in O.S.No.59/2012.
2. For the sake of convenience, the parties shall be referred as per their status before the trial Court.
3. Respondent No.1-plaintiff brought a suit for partition and separate possession. First defendant was initially placed ex parte and subsequently, the said order was set aside. Thereafter, he filed his written statement contending inter alia that the suit schedule properties were not joint family properties .
4. Subsequently, petitioner filed the instant I.A.19 seeking to amend the written statement by inserting para 19(A) and to contend that plaintiff and defendants were in joint possession and enjoyment of agricultural lands bearing survey Nos.218 and 222 of Belagali village. The said I.A. was contested by defendants No.4 to 7 and defendant No.9 by filing separate statements of objections.
5. After hearing the parties and on consideration of material on record, the learned trial Judge dismissed I.A.19 by holding that petitioner-first defendant by the proposed amendment was seeking to withdraw the admissions made in the written statement.
6. Assailing the correctness of the impugned order, Shri Naganuri, learned Counsel for the petitioner made following submissions:
a. Petitioner-first defendant did file a written statement contending that the suit properties were not joint family properties. Suit is one for partition and separate possession. Petitioner is younger brother of plaintiff.
b. By the instant I.A. for amendment, petitioner has sought for inclusion/addition of a paragraph as 19(A). But he has not sought for deletion of any portion of the written statement already filed by him.
c. It is settled in law that a defendant can take inconsistent stands.
d. The suit being one for partition and separate possession, the benefit of ensuing judgment and decree would enure to the benefit of all members of the family.
7. In support of his contention that the plaintiff can take inconsistent stands, he placed reliance on the following rulings:
1. Judgment of Hon ble Supreme Court in the case of Basavan Jaggu Dhobi vs. Sukhnandan Ramdas Chaudhary (dead) through LRs. And others, reported in 1995 Supp (3) SCC 179;
2. Judgment of Hon ble Supreme Court in the case of Usha Balashaheb Swami and Others vs. Kiran Appaso Swami and Ors. reported in ILR 2007 Karnataka 2590;
3. Judgment of Hon ble Supreme Court in the case of State of M.P. vs. Union of India and Anr. reported in 2011 AIAR (Civil) 801;
With the above submissions supported with the rulings mentioned supra, Shri Naganuri prayed for setting aside the impugned order and allowing I.A.19.
8. Per contra, Sri S.C. Bhuti learned Counsel appearing for respondents No.4 to 7 and 9 supporting the impugned order vehemently contended that the petitioner has come up with the instant I.A. to protract the proceedings at a highly belated stage after the evidence of the plaintiff s side was complete. He further submitted that in the original written statement, petitioner has taken a specific stand that the propositus Shri Irappa had no right, title in the suit property; that suit properties were not acquired with the joint family funds; and in fact no joint family ever existed. However, by seeking inclusion of paragraph No.19(A) by way of amendment, petitioner has taken a diametrically opposite stand that he (petitioner) along with plaintiff and their father Irappa (propositus) were jointly engaged in the business of running a pan shop, video cassette shop, cotton yarn shop etc. It is also sought to be brought on record that other family members worked with the petitioner and contributed to the family income. In addition, it is contended in the proposed amendment that agricultural lands bearing survey No.218 and 222 were in joint possession and enjoyment of plaintiffs and defendant from the year 1970.
In sum and substance, Shri Bhuti submitted that the petitioner by the proposed amendment sought to withdraw a very vital admission that there existed no joint family. Such withdrawal of admissions is impermissible in law.
9. Shri Bhuti placed reliance on the judgment of the Hon ble Supreme Court in the case of Ajendraprasadji N.Pande and Anr. Vs. Swami Keshavprakeshdasji N. and Ors. reported in AIR 2007 SC 806 to contend that the petitioner has not placed any material to show that despite exercise of due diligence, he could not file the application for amendment at an earlier point of time as required under proviso to Order 6 Rule 17 CPC. He also placed reliance on the judgment of this Court in the case of Kasturi Bai vs. Suhas and others reported in 2015(3) KCCR 1985 in support of his case.
With these submissions, he prayed for dismissal of this writ petition.
10. Facts in this case are not in dispute and in a narrow compass as delineated above. The question that falls for consideration is as to whether dismissal of I.A.19 by the trial Court requires any interference in the light of pleadings and the rulings cited before this Court?
11. It is trite law that an application seeking amendment should not be allowed after trial has commenced unless court comes to a conclusion that despite due diligence, the party seeking amendment could not have filed the application before the commencement of trial.
12. The sheet anchor of petitioner s case is that defendant can taken inconsistent stands as has been held by the Hon ble Supreme Court in the rulings placed in support of petitioner s case. In the case of Usha Balashaheb supra, the Hon ble Supreme Court after considering several authorities on the point including an earlier judgment in the case of Basavant Jaggu cited by the petitioner and Modi Spinning and Weaving Mills Co. Ltd., referred to by the learned Single Judge in the case of Kasturi Bai supra has held that a defendant may seek to add, substitute or alter a defence or take inconsistent pleas in the written statement. It has precisely stated thus:
18. 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.
So far as the approach towards an I.A. for amendment is concerned, it is held by the Hon ble Supreme Court in the said judgment that the approach must be liberal and the same is summarised as follows:
21. 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 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.
13. Further in the case of State of M.P. vs. Union of India supra, the Hon ble Supreme Court while considering the principles with regard to an I.A. under Order 6 Rule 17 of CPC, after adverting to various cases has held that the courts have ample power to allow an application seeking amendment. It may be profitable to extract portions of judgments in three different cases referred to in paragraph No.10 of the said judgment and the same reads thus:
10. This Court, while considering Order 6 Rule 7 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:
(i) Surender Kumar Sharma v. Makhan Singh [(2009) 10 SCC 626: (2009) 4 SCC (Civ) 294], at para 5: (SCC p. 627)
5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.
(ii) North Eastern Railway Admn. V. Bhagwan Das [(2008) 8 SCC 511], at para 16: (SCC p.517)
16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
(iii) Usha Devi v. Rijwan Ahamd [(2008) 3 SCC 717: (2008) 1 SCC (Civ) 922], at para 13: (SCC p.722)
13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh [(2006) 6 SCC 498]. In para 17 of the decision, it was held and observed as follows: (SCC pp.504-05)
17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.
(iv) Rajesh Kumar Aggarwal v. K.K. Modi [(2006) 4 SCC 385], at paras 15 and 16: (SCC pp. 392-93)
15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
(v) Revajeetu Builders and Developers v. Narayanaswamy and Sons [(2009) 10 SCC 84: (2009) 4 SCC (Civ) 37], at para 63. (SCC p.102)
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
The above principles make it clear that courts have ample power to allow the application for amendment of the plaint. However, they must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties. We have already pointed out the relief prayed for in the plaint. According to the plaintiff-State of Madhya Pradesh, the Notifications/Orders dated 02.11.2004 and 04.11.2004 have to be declared null and void since the same are unconstitutional and in violation of Article 14 of the Constitution of India. The other relief, prayed for by the plaintiff, is to direct the 1st Defendant-Union of India to dissolve the MPEB in consonance with the orders/directions dated 12.04.2001, 04.12.2001 and 23.05.2003 passed by the Union of India under Section 58(4) of MPR Act. In addition, the plaintiff-State of M.P. has also prayed for to direct the Union of India by way of Mandatory injunction to perform its constitutional and statutory duty to lay down proper criteria for apportionment of assets, rights and liabilities in accordance with law and to ensure equitable, just, fair and reasonable apportionment of assets, rights and liabilities amongst the successor Boards on the basis of revenue potential so as to avoid undue hardship and disadvantage to any of the successor Boards.
14. If the case on hand is examined with reference to the principles contained in the above judgments, it leads to an inference that this petition merits consideration because, the suit is one for partition and separate possession. By the proposed amendment, the first defendant-petitioner is seeking to change his stance and proposes to take a position that the properties belong to joint family. Evidence on behalf of the plaintiff is complete. Yet, it would be appropriate to permit the petitioner to bring his amended pleading on record as it would facilitate the trial court to determine the real question in controversy as has been held in the case of Rajesh Kumar Aggarwal.
15. So far as the judgments relied upon by the learned Counsel for respondent No.4 is concerned, in the case of Ajendraprasadji supra, the subject matter of suit was for a declaration to the effect that in view of a resolution, the defendant No.1 therein was not entitled to enjoy privileges in respect of a temple. In contrast, the case on hand is one for partition and touches upon the property rights of plaintiff and defendants.
16. In the judgment of this Court in the case of Kasturibai supra relied upon by the learned Counsel for the respondents, judgments of the Hon ble Supreme Court in the cases of Modi spinning, Hiralal and B.K. Narayan Pillai have been referred. The first two judgments namely, Modi Spinning and Hiralal have been considered by the Hon ble Supreme Court in the case of Usha Balashaheb relied upon by the learned Counsel for the petitioner.
17. Thus, keeping in view the fact that the suit is one for partition, I am of the considered view that it is desirable to permit the defendant No.1 petitioner to bring on record his additional statement by way of amendment to the written statement by compensating the plaintiffs with suitable costs.
18. In the result, the following:
ORDER
i) Writ petition is allowed with costs of Rs.5,000/-;
ii) Rule is issued and made absolute;
iii) Order dated 6.11.2015 on I.A.19 in O.S.59/2012 on the file of Senior Civil Judge and JMFC, Mudhol is set aside;
iv) I.A.19 filed by the petitioner before the trial Court is allowed.