HEERALALversusKALYANMAL AND ORS.

                                 HEERALAL                                           A
                                       v.
                         KALYANMAL AND ORS.

                           NOVEMBER 19, 1997

        [S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.]                                  B

     Civil Procedure Code, 1908-0rder VJ Rule 17-Amendment-When
can be a/lowed-Admission in original written Stalement-Withdrawal-
Allowing of
                                                                                    c
      Appellant filed a suit for partition in respect of ten immovable properties
mentioned in Schedule A of the plaint and other properties listed in Schedule
B of the plaint. The Respondent in their written statement took a stand that
three properties out of the ten properties listed in Schedule A exclusively
belonged to them and that they were not joint family properties. They further
mentioned that the appellant was entitled to partition of only seven out of the     D
ten items listed in Schedule A. In respect of Schedule B properties, the
Respondent claimed that the appellant had no interest therein.
      On the basis of the pleadings, the Trial court framed issues in respect
of only those three properties of Schedule A which were claimed n~t to be
joint and in respect of the remaining seven properties, no issue was framed.        E
Several months thereafter, the Respondent No. I moved an application for
amendment of the written Statement in which it was claimed that the admission
made in respect of five properties listed in Schedule A was erroneous and
was caused due to incomplete information supplied to the counsel due to ill
health of Respondent No. I. In respect of properties mentioned in Schedule          F
B, the Respondent No. I claimed that they had been occupied by trespassers
and ceased to remain in the possession of Respondent No. I.

      The application for amendment was rejected by the Trial Court. The
High Court allowed the revision petition filed by the Respondent on the
ground that an admission may be explained Gr given a go-by in appropriat<:          G
cases. Hence this appeal.

      Partly allowing the appeal, this Court

     HELD: I.I. The order passed by the High court under Section 115
CPC, allowing withdrawal of earlier admissions of Respondent I and 2 in             H
                                      277
    278                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A their original written statement about 5 out of 7 items of Schedule-A
    properties cannot be sustained. 1280-Hi

          1.2 No case was made out by the Respondent for amending the written
    statement and thus attempting to go behind their admission regarding 5 out
    of 7 properties listed in Schedule A of the plaint. So for as Schedule A
B   properties were concerned, a clear admission was made by Respondent I and
    2 in their joint written statement in 1993 that 7 properties out of IO were
    joint family properties wherein the Appellant had I/3rd share and they had
    2/3rd undivided share. Once such a stand was taken, naturally it must be
    held that there . was no contest between the parties regarding 7 items of suit
C   properties in Schedule A. [284-C-D; 281-A-B[

          2. Once the written statement contains an admission in favour of the
    plaintiff, by amendment such admission of the defendants cannot be allowed
    to be withdrawn, if such withdrawal would amount to totally displacing the
    case of the plaintiff and which would cause him irretrievable prejudice.
                                                                     [283-C-Dj
D
          Basavan Jaggu Dhabi v. Sukhnandan Ramdas Chaudhary (Dead)
    through L.Rs and Ors., [1995[ Supp. 3 SCC 179 and Panchadeo Narain
    Srivastava v. Km. Jyoti Sahay and Anr., (1984) Supp. S. 594, distinguished.

          Akshaya Restaurant v. P. Anjanappa and Anr., (1995) 2 SC 303, held
E   per incuriam.

          Modi Spinning & Weaving Mills Co. Ltd & Anr. v. Ladha Ram & Co.,
    [1977 [ I SCR 728, relied on.

          3. However, so far as Schedule B Properties are concerned, from the
    very inception the respondents' case qua those properties was that Appellant
F   had no interest therein. By proposed amendment they wanted to introduce an
    event with reference to those very properties by submitting that they had
    been in possession of trespassers. Such amendment could not be said to have
    in any way adversely or prejudicially affected the case of the Appellant or
    displaced any admission on their part qua Schedule B properties which
G   might have resulted into any legal right in favour of the Appellant. Therefore,
    so far as Schedule B properties were concerned, the amendment could not
    be found fault with. [284-D-Ej

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7852 of
    1997.
H           From the Judgment and Order dated 19.2.97 of the Rajasthan High Court
           HEERA LAL v. KAL YAN MAL [S.B. MAJMUDAR, J.]                      279
in S.B.C.R. No. 1209of1996.                                                          A
     Sushi! Kumar Jain, Pradeep Aggarwal and A.P. Dhamija for the appellant
A.K. Goel and Mrs. Sheeela Goel for the Respondents.

      The Judgment of the Court was delivered by

      S.B. MAJMUDAR, J. Leave granted.
                                                                                     B

      Heard learned counsel for the appellant as well as learned advoca:e for
respondent nos. I and 2, who are original defendant nos. I and 2 and are the
only contesting parties in this appeal. The appeal was taken up for final
disposal forthwith by their consent.
                                                                                     c
       Appellant plaintiff had filled a civil suit for partition of I 0 items of
immovable properties mentioned in Schedule-A of the plaint and also for
partition of other properties listed in Schedule B of the plaint. The suit was
filed in 1993 in the court of District Judge, Bundi for partition of the suit
properties mentioned in diverse schedules annexed to the plaint. The contesting      D
respondent nos. I and 2, who are defendant nos. I and 2 in the suit, being
real brothers of the plaintiff filed a joint written statement on !st October 1993
in the Trial Court. In the written statement a definite stand was taken by the
contesting defendants that out of the listed properties in Schedule-A only
three properties at items 4, 9 and I 0 were exclusively belonging to the
contesting defendants and were not joint family properties of the plaintiff and      E
defendant nos. I and 2. Meaning thereby that the other seven properties
listed in Schedule- A were admitted to be joint family properties. Not only that
but in para 11 of the written statement it was submitted that 'the plaintiff is
only entitled for partition regarding the properties of Schedule-A except in
items 4, 9 and IO and all the properties mentioned in Schedule-B'. They also
stated in the said para 11 of the written statement that so far as admitted          F
properties were concerned, the plaintiff was entitled to I/3rd share and remaining
213 rd share belonged to defendant nos: I and 2. It appears that thereafter the
suit remained pending for trial for number of years. On the basis of the
aforesaid stand taken by the contesting parties in the written statement,
issues were framed by the Trial Court. Issue No. 2, amongst others, read as
under:                                                                               G

        "Whether the property mentioned in Item No. 4, 9 & I 0 of Schedule
        'Aa' attached with the plaint is the property of Hindu Undivided
        Family?"

      Obviously this issue was framed in the light of the admission of the           H
    280                     SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A   contesting dependants in the written statements that rest of the items listed
    in the Schedule-A were joint family properties wherein the plaintiff had a
    share along with the defendants.

         In the light of the aforesaid admitted position between the parties qua
  these properties the plaintiff moved an application for appointment of a
B receiver in connection with 7 admitted properties in Schedule-A. It was at that
  stage and that too after a passage of about 18 months from the moving of
  such applicatioµ for appointment of receiver by the appellant that defendant
  no. I. came forward with an amendment application to amend his written
  statement. In the amendment application it was submitted that because of
  incomplete information supplied by him to his counsel the written statement
C came to contain the so-called admissions regarding 5 out of 7 items of the
  properties in Schedule-A and that he had suffered a heart attack in 1989 and
  therefore when the written statement was moved in 1993 this error crept in.
  He also wanted to insert a further averment in the written statement regarding
  Schedule-B properties that they had ceased to remain in possession, of
  defendant no. I and were in possession of trespassers. Learned Trial Judge
D took the view that the application for amendment was not a bona fide one
  and it was moved only with a view to protract the proceedings as the suit
  was at the stage of trial by them. Learned Trial Judge was not inclined to
  accept the reasons put forward for moving such an amendment application
                                                                   '
   at such a late stage and that too for getting out of the admissions    made by
E defendant nos. I and 2 in connection with the relevant suit properties. The
   result was that the amendment application was dismissed. The first defendant
   carried the matter in revision under Section 115 of the Code of Civil Procedure
  ('CPC') before the High Court. Learned single judge of the High Court who
   heard the revision application was of the view that it was settled legal
   position that.admission made earlier could be explained and could be given
F a go-by in appropriate cases and as defendant no. I wanted to go behind his
   earlier admission which amounted to an inconsistent stand on his part, such
   an inconsistent stand in written statement could not be said to be prohibited
   by the procedural law. For arriving at that conclusion of his, reliance was
   placed on some of the judgments of this Court to which our attention was
   invited by the learned counsel for the respondent in support of the judgment
G and to which we will make a reference hereafter. Resultantly, the revision
   application moved by the respondent was allowed by the High Court. That
   is how the plaintiff is before us in this appeal.

          In our view, the order passed by the High Court under Section 115, CPC,
    allowing withdrawal of earlier admissions of defendant nos. I in 2 in their
H   original written statement about 5 out 7 items of Schedule-A properties
               HEERA LAL v. KAL YAN MAL [S.B. MAJMUDAR, J.]                      281

    cannot be sustained. The reason is obvious. So far as Schedule-A properties          A
    were concerned, a clear admission was made by defendant nos. I and 2 in
    their joint written Statement in 1993 that 7 properties out of I 0 were joint
    family properties wherein the plaintiff had I/3rd share and they had 2/3rd
    undivided share. Once such a 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         B
    framing Issue No. 2 concerning only remaining three items for whi1·h 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        C
    at once pronounce the judgement'. 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                  D
                                                                                  '
    Consequently, there is no question of taking inconsistent stand which would
    not have affected perjudically the plaintiff as wrongly assumed by the High
    Court. We also fail to appreciate how the decisions on which strong reliance
    was placed by the learned counsel for the respondent can be of any assistance
    to him. We may briefly refer to them.
                                                                                         E
           In the case of Basavan Jaggit Dhabi v. Sukhnandan Ramdas Chaudhary
    (Dead) Through LRs. and others, [1995] Supp. 3 SCC 179, the plaintiff had
    filed a suit claiming that defendant was a licensee whose licence was terminated
    and, therefore, possession under Section 41 of the Presidency Small Causes
    Court Act should be granted to him. The defendant earlier took up a stand            F
    that he was a joint tenant along with others. Subsequently he tried to rely
    upon Section 15-A of the Bombay Rents, Hotel and Lodging House Rates
    Control Act, 1947 by submitting that he was a licensee for monetary
    consideration who was deemed to be a tenant as per the provisions of the
    said Section. This Court held that such a defence which is inconsistent could
    have been validly taken by the defendant. It has to be appreciated that in that      G
    case even though inconsistent stand was permitted to be taken by the
    defendant, the stand by itself did not seek to displace any admission on the
    part of the defendant in favour of the plaintiff. The defendant from the
    inception contended that the plaintiffs suit should be dismissed but the
    ground on which dismissal was claimed was sought to be changed by an
i   alternative plea. Therefore, there was no question of any prejudice to the           H
    282                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.                t.
A plaintiff if such an inconsistent stand was allowed. That is how this Court in
    the aforesaid decision held that such amendment in written statement could
    have been granted. Such is not the case before us. Here if the amendment
    is granted, the whole case of the plaintiff qua admitted joint family properties
    would get displaced as the defendants themselves had in clear terms admitted
    that in 7 items of properties in Schedule-A plaintiff had I /3rd undivided
B   interest. On that basis even preliminary decree could have been passed by
    the court at that stage. As that right which had accrued to the plaintiff, as
    noted earlier, would be irretrievably lost if such amendment is allowed qua five
    of these seven items in Schedule-A of the plaint for which by the impugned
    amendment the earlier admissions were sought to be recalled.

C         Our attention was also invited to another decision of a Bench of two
    learned judges of this Court in the case of Akshaya Restaurant v. P. Anjanappa
    and another, (1995] supp. 2 SCC 303. In that case the plaintiff had filed a suit·
    on the basis of a agreement of sale entered into by the defendant with the
    plaintiff agreeing to sell the suit property for a sale consideration of Rs.
    29,87,000 on 25th January 1991. The defendant in the written statement had
D   earlier stated that it was true that the defendant entered into such an agreement        .•
    but by an amendment an averment was sought to be introduced in he written
    statement to the effect that it is incorrect to state that the defendant agreed
    to enter into agreement of sale. It is true that the defendant had entered into
    an agreement with the plaintiff on 25th January 1991 but it was for development
    of the suit schedule land for the mutual benefit of the parties. This amendment
E   was held to be justified by this Court.
          Now it is easy to visualize on the facts before this Court in the said case
    that the defendant did not seek to go behind his admission that there was
    an agreemeni of 25th January 1991 between the parties but the nature of
    agreement was sought to be explained by him by amending the written
F   statement by submitting that it was not agreement of sale as such but it was
    an agreement for development of land. The facts of the present case are
    entirely different and consequently the said decision also cannot be of any
    help for the learned counsel for the respondent. Even that apart, the said
    decision of two learned judges of this Court runs counter to a decision of a
    Bench of three learned Judges of this Court in the case of Modi Spinning
G   & Weaving Mills Co. ltd. & Anr. v. ladha Ram & Co., (1977] I SCR 728. In
    that case Ray, CJ., speaking for the Bench had to consider the question
    whether the defendant can be allowed to amend his written statement by
    taking an inconsistent plea as compared to the earlier plea which contained
    an admission in favour of the plaintiff. It was held that such an inconsistent
     plea which would displace the plaintiff completely from the admissions made
H    by the defendants in the written statement cannot be allowed. If such
            HEERA LAL v. KAL YAN MAL [S.B. MAJMUDAR, J.]                   283
 amendments are allowed in the written statement plaintiff will be irretrievably   A
 prejudiced by being denied the opportunity of extracting the admission from
-the defendants. 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 19.67 the
 plaintiff worked as their stockist-cum-distributor. After three years the
 defendants by application under Order VI Rule 17 sought amendment of              B
 .vritten statement by substituting paragraphs 25 and 26 with a new paragraph
 in which they took the fresh plea that plaintiff was mercantile agent-cum-
 purchaser, meaning thereby they sought to go behind their earlier admission
 that plaintiff was stockist-cum-distributor. Such amendment was rejected by
 the Trial Court and the said rejection was affirmed by the High Court in
 revision. The said decision of the High Court was upheld by this Court by         C
 observing as aforesaid. This decision of a Bench of three learned Judges of
 th is Court is a clear authority for the proposition that once the written
 statement contains an admission in favour of the plaintiff, by amendment
 such admission of the defendants cannot be allowed to be withdrawn if such
 withdrawal would amount to totally displacing the case of the plaintiff and
 which would cause him irretrievable prejudice. Unfortunately the aforesaid        D
 decision of three member Bench of this Court was not brought to the notice
 of the Bench of two learned judges that decided the case in Akshaya
 Restaurant (supra). In the latter case it was observed by the Bench of two
 learned Judges that it was settled law that even the admission can be explained
 and even inconsistent pleas could be taken in the pleadings. The aforesaid        E
 observations in the decision in Akshaya Restaurant (supra) proceed on an
 assumption that it was the settled law that even the admission can be explained
 and even inconsistent pleas could be taken in the pleadings. However the
 aforesaid decision of the three member Bench of this Court in Modi Spinning
 (supra) is to the effect that while granting such amendments to written
 statements no inconsistent or alternative plea can be allowed which would         F
 displace the plaintiffs case and cause him irretrievable prejudice.

      Consequently it must be held that when the amendment sought in the
written statement was of such a nature as to displace the plaintiffs case it
could not be allowed as ruled by a three member Bench of this Court. This
aspect was unfortunately not considered by latter Bench of two learned
Judges and to the extent to which the latter decision look a contrary view qua     G
such admission in written statement, it must be held that it was per incuriam
being rendered without being given an opportunity to consider the binding
decision ofa three member Bench of this Court taking a diametrically opposite
view.
      We were then taken to another decision of this Court in the case of          H
    284                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A   Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another, [1984] Supp.
    SCC 594]. In that case the plaintiff was held entitled to amend his plaint by
    submitting that though earlier he stated that the defendant was uterine brother,
    the plaintiff by amendment in his plaint could submit that the defendant was
    his brother and the word 'uterine' could be dropped. Even in that case the
    main case put forward by the plaintiff did not get changed as the plaintiff
B   wanted to submit that the defendant was his brother. Whether he was uterine
    brother or real brother was a question. of decree and depended on the nature
    of evidence that may be led before the Court. Therefore, the deletion of word
    'uterine' was not found to be displacing the earlier case of the plaintiff. On
    the facts of the present case also, therefore, the said decision cannot be of
    any assistance to the learned counsel for respondents.
c
          In our view, therefore, on the facts of this case and as discussed earlier,
    no case was made out by the respondents, contesting defendants, for
    amending the written statement and thus attempting to go behind their
    admission regarding 5 out of 7 remaining items out of 10 listed properties in
    Schedule-A of the plaint. However, so far as Schedule-B properties are
D   concerned from the very inception the defendants' case qua those properties
    was that plaintiff had no interest therein. By proposed amendment they
    wanted to introduce an event with reference to those very properties by
    submitting that they had been in possession of trespassers. Such amendment
    could not be said to have in any way adversely or prejudicially affected the
    case of the plaintiff or displaced any admission on their part qua Schedule-
E   B properties which might have resulted into any legal right in favour of the
    plaintiff. Therefore, so far as Schedule-B properties were concerned, the
    amendment could not be found fault with. Hence exercising the powers under
    Article 136 of the Constitution of India we would not be inclined to interfere
    with that part of the decision of the High Court allowing the amendment in
    the written statement, even though strictly speaking High Court could not
F   have interfered with even this part of the order under Section 115, CPC.

          In the result, this appeal is partly allowed. The respondents application
    for amending the written statement in so far as it sought to withdraw earlier
    admission about 5 properties out of the remaining seven items of Schedule-
G   A of the plaint shall stand dismissed. However, order regarding a part of the
    application for amending the written statement qua Schedule-B properties,
    which was allowed by the High Court will remain untouched. No costs.

    B.K.M.                                                         Appeal allowed.