Santokh Singh Vs. Harcharan Singh and ors. - Court Judgment

M.M. Kumar, J.

1. The plaintiff has challenged order dated 12.4.1994 passed by Sub Judge, IInd Class, Hoshiarpur in this petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code'). The trial Court vide impugned order has allowed an application filed by the defendant respondents under Order 6 Rule 17 of the Code in which prayer for amendment of the written statement was made.

2. Brief facts of the case are that the plaintiff-petitioner filed a suit for possession of 17 Kanals 13-1/2 marlas of agricultural land and 2-1/2 marla of abadi land, which is fully detailed in sub-paras (i), (ii), (iii) and (iv) of the heading of the plaint. He has im-pleaded Harcharan Singh son of Gurbachan Singh as defendant No. 1, Kishan Singh-his own father as defendant No. 2 and Sohan Singh-his paternal uncle as defendant No. 3. He also claimed the relief of permanent injunction so as to restrain defendant-respondent No. l from alienating the suit property or from making any construction on the abadi land to which reference has been made in sub-para (iv). In the suit assertion was made that Kishan Singh, father of the plaintiff-petitioner, who has been impleaded as defendant-respondent No. 2 is karta of joint Hindu family and as such had no right to alienate the property in any manner, without the consent of the plaintiff-petitioner who claimed to be a co-parcener and, therefore, alienation made by him in favour of defendant-respondent No. 1 is alleged to be illegal, without consideration, any legal necessity and not an act of good management. Consequently, the validity of the sale deed has also been challenged alleging that the father of the plaintiff-petitioner is addicted to drinks etc. The allegations of fraud have also been levelled against the defendant-respondent No. 1.

3. The suit has been contested by defendant-respondent No. l who filed his written statement alleging collusion of the plaintiff-petitioner and defendant-respondent Nos. 2 and 3. It was further asserted that defendant-respondent No. 1 has nothing to do with the properties mentioned in sub-paras (i), (ii) and (iii) of the head note of the plaint. In respect of the property mentioned in sub-para (iv), it has been stated that the property in dispute was owned by Kishan Singh (defendant-respondent No. 2) and it has been sold to defendant-respondent No. 1.

4. During the course of proceedings, defendant-respondent No. l filed an application under Order 6 Rule 17 read with Section 151 of the Code in which prayer for amendment of the written statement has been made. The application was ordered to be placed on record for 29.4.1992. It is further appropriate to mention that the proceedings in the suit continued in the usual manner and the evidence of the parties was recorded. At the stage of arguments, learned Counsel for the defendant-respondent No. 1 pressed the application for filing the amended written statement and the prayer made by the learned Counsel was opposed. The plaintiff-petitioner was permitted to file reply to the application which has been eventually disposed of by the impugned order.

5. By way of amendment, defendant-respondent No. l wanted to raise preliminary objections asserting (a) that the suit is being barred; (b) that the plaintiff-petitioner is estopped by his own act and conduct to file the present suit and (c) that defendant-respondent No. 2 has instigated the plaintiff-petitioner to file the suit. He also requested for deleting the last line of para No. 2 of the written statement with a further prayer of adding some lines. The lines which were sought to be deleted from the written statement read as under: -.the answering defendant has nothing to do in respect of the properties mentioned in paras I, II and III in the heading of the plaint. This property has been unnecessarily impleaded in the case whereas no relief has been claimed against any person in respect of these properties in Paras, I, II and III....

The lines which were sought to be added are reproduced hereunder for facility of reference and the same read as under: -

The defendant No. l has purchased all the property mentioned in the plaint through two different sale deeds dated 4.7.1983 in an total sum of Rs. 9,000/- and since then he is in possession of the same and the Mutation has already been sanctioned in his favour. He has spent a lot in levelling of the agricultural land mentioned in the Para No. 1 of the head note of the plaint.

6. It is appropriate to mention that the application for amendment was filed by defendant-respondent No. l at the stage when the evidence of the plaintiff-petitioner had not even started. However, the application was opposed on the ground that it was not maintainable and permission to amend the written statement, at the stage of arguments, would result into withdrawal of admission made by defendant-respondent No. l as he has admitted ownership of plaintiff-petitioner in respect of the properties detailed in sub-paras (i) and (iii).

7. The trial Court allowed the application by observing that the plaintiff-petitioner has accepted the execution of the sale-deeds by his father defendant-respondent No. 2 in favour of defendant-respondent No. l and, therefore, any inadvertent admission in the written statement that the defendant-respondent No. 1 did not have any concern with the properties detailed in sub-paras (i), (ii) and (iii) of the head note of the plaint, would be inconsequential. The trial Court further held that the Section 58 of the Evidence, 1872 cannot be relied upon by the plaintiff-petitioner in a blanket manner because the proviso to Section 58 of the Evidence Act, 1872 categorically provides that despite admission, the Court is competent to exercise discretion requiring the admitted facts to be proved. The sale-deeds in respect of properties mentioned in sub-paras (i), (ii) and (iii) of the plaint have been placed on record and those sale-deeds have not been denied by the plaintiff-petitioner or defendant-respondent No. 1. It has been further held that if such type of technicalities are used against withdrawal of an admission then there is likelihood of miscarriage of justice. It is further appropriate to mention that the application was allowed with costs and defendant-respondent No. 1 has suffered a statement that no fresh evidence was required to be adduced on the basis of amendment made in the written statement. It has further been observed that the aforementioned statement made by defendant-respondent No. l before the trial Court would allay any apprehension that defendant-respondent No. l wanted to delay the proceedings. Feeling aggrieved, the plaintiff-petitioner has approached this Court by filing the instant petition under Section 115 of the Code.

8. On 17.1.1995 the petition was admitted by this Court and further proceedings were stayed.

9. Mr. K.S. Dadwal, learned Counsel for the plaintiff-petitioner has argued that the order passed by the learned trial Court suffers from patent illegality because, it allows withdrawal of an admission made in the written statement, which has resulted into requirement of decision on one issue alone namely the property detailed in sub-para (iv) of the plaint. According to the learned Counsel, the defendant-respondent No. 1 has categorically admitted in the written statement that he had got nothing to do with the properties mentioned in sub-paras (i), (ii) and (iii) of the heading of the plaint and those properties were unnecessarily impleaded in the suit. Learned Counsel has maintained that permission to withdraw the aforementioned admission would result into grave prejudice to the plaintiff-petitioner as his rights would be adversely effected.

10. No one has put in appearance on behalf of defendant-respondent No. 1. The revision petition is pending since 1994 and the proceedings before the trial Court have been stayed and, therefore, I do not feel the necessity of adjourning the case on account of absence of the learned Counsel for the defendant-respondents.

11. Having heard the arguments and perusing the detailed order passed by the learned Trial Court, I am of the considered view that this petition deserves to be dismissed because there is no error or jurisdiction or otherwise illegality. It appears to be well settled that wrongful admissions made by a party could always be explained and successfully withdrawn. The aforementioned question came up for consideration before the Supreme Court in the case of Akshaya Restaurant v. P. Anjanappa and Anr. 1995 Suppl.(2) S.C.C. 303. Holding that admission can be explained, their Lordships rejected the argument identical to the one sought to be raised before me. Paras 4 and 5 of the judgment are reproduced hereunder for facility of reference:

4. Learned Counsel for the appellant vehemently contends that having made an admission that the respondents had entered into an agreement of sale and having made certain averments in support thereof, it was not open to the respondents to wriggle out from the admission. Admission is a material piece of evidence which would be in favour of the appellant and binds the respondents. When the admission is sought to be withdrawn and some additional facts are sought to be introduced, it would be inconsistent and the High Court was not justified in permitting such an amendment.

5. We find no force in the contention. 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 para 6 of the written statement a 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.

12. Similar legal proposition has been reiterated in the cases of Gurdial Singh and Ors. v. Raj Kumar Anjea and Ors. (2002-1)130 P.L.R. 835 (S.C.) and Estralla Rubber v. Dass Estate (P) Ltd. : AIR2001SC3295 . It has also been held by the Supreme Court that the Courts should be liberal in granting amendment of written statement because it is unlikely that any prejudice would be caused to the other side by adopting such a course, for the aforementioned proposition reliance can be placed on the judgment of Supreme Court in B.K.N. Pillai v. Parmeswaram Pillai : AIR2000SC614 .

13. When the facts of the present case are examined in the light of the principles laid down by the Supreme Court, no doubt is left that the order passed by the trial Court does not suffer from any legal infirmity. It is admitted position that the sale-deeds executed somewhere in the year 1983 in respect of the properties detailed in sub-paras (i), (ii) and (iii) are subject matter of the challenge in the suit filed by the plaintiff-petitioner. Those sale-deeds are in favour of defendant-respondent No. 1, whose application for amendment under Order 6 Rule 17 read with Section 151 of the Code has been allowed. The sale deeds have been challenged on the grounds of lack of necessity by the karta of the joint Hindu family i.e. Defendant-respondent No. 2, who is the father of the plaintiff-petitioner. There are allegations of fraud in procuring the sale deeds made against defendant-respondent No. 1. In the written statement, it appears that inadvertently defendant-respondent No. 1 has stated that he had got nothing to do with the properties mentioned in sub-paras (i), (ii) and (iii) of the plaint. The aforementioned statement made in the written statement led to the filing of an application under Order 6 Rule 17 read with Section 151 of Code promptly when the evidence of the plaintiff-petitioner had not even commenced. Even otherwise, 1 am of the view that no prejudice is likely to be caused to the interest of the plaintiff-petitioner because he himself has assailed those sale-deeds which are in favour of defendant-respondent No. 1 and are in respect of the properties detailed in paras (i), (ii) and (iii) of the plaint. Moreover, defendant-respondent No. l has made a statement that he has not to adduce any evidence on account of the amendments. It is well settled that the erroneous admissions can always be explained as has been satisfactorily shown by defendant-respondent No. 1. Even otherwise Supreme Court in B.K.N. Pillia's case (supra) has observed that the Courts should be liberal in granting the prayer for amendments in cases of amendment of written statement. Therefore, the view taken by the Trial Court is liable to be up-held.

14. For the reasons aforementioned, this petition fails and the same is dismissed. The parties are directed to appear before the Trial Court on 30.1.2006. The trial Court shall make all efforts to decide the civil suit expeditiously preferably within a period of six months.