ORDER
P.S. Narayana, J.
1. These civil revision petitions are coming up ‘for admission’.
2. Heard Sri G. Anandam, the learned Counsel representing the revision petitioner in both the civil revision petitions and Sri Anand Kumar Kapur, who had lodged caveat on behalf of respondents in both these civil revision petitions.
3. In view of the commonality of the facts, both these civil revision petitions are being disposed of by a common order.
4. CRP No. 5205 of 2007 is filed as against an order made in IA No. 308 of 2007 in OS No. 30 of 2001 on the file of the Court of Junior Civil Judge, Gadwal, Mahbubnagar District. Likewise, CRP No. 5206 of 2007 is filed as against as order made in IA No. 309 of 2007 in OS No. 29 of 2001 on the file of the Court of Junior Civil Judge, Gadwal, Mahbubnagar District.
5. In both these matters, the revision petitioner is the defendant in both the suits, who filed applications under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to for short as ‘The Code’ for the purpose of convenience) praying for amendment of written statement in the respective suits.
6. The plaintiff in OS No. 30 of 2001 is Mr. M. Rajagopala Chary and the plaintiff in OS No. 29 of 2001 is Mr. M.R. Srinivas son of Mr. M. Rajagopala Chary, the plaintiff in OS No. 30 of 2001.
7. In these respective applications filed by the petitioner-defendant in the respective suits, it was averred that the written statement had been filed, PWs. 1 and 2 were examined and thereafter the revision petitioner examined himself as DW. 1. At the time of filing of written statement, neither the petitioner nor his Counsel had perused the suit promissory notes in these suits marked as Ex.A.1. The specific stand taken is that there is material alteration and certain further averments had also been made.
8. These applications were resisted by filing counters in detail stating that in the written statement an admission relating to the execution of the suit promissory notes had been made and the plea of material alterations had not been taken. PW. 1, the plaintiff and PW. 2 the attestor of Ex.A1 had been examined. DW. 1 in fact admitted the scribe of promissory note in question and if the proposed amendment in the written statement to be allowed it would amount to permitting inconsistent pleas. Certain other facts also had been narrated in the counters.
9. Sri G. Anandam, the learned Counsel representing the revision petitioners would maintain that the dismissal of these applications made by the learned Judge was on the ground of delay and by virtue of the dismissal of these applications, the revision petitioner is seriously prejudiced, since his valuable right to put forth the plea of material alteration is being taken away. The learned Counsel would also maintain that the verification of the documents in question only this was detected. Hence in any view of the matter and also in the light of the views expressed by the Apex Court, these civil revision petitions are to be allowed, may be in the facts and circumstances of the case by imposing costs if this Court feels just and convenient in these revisions. The Counsel also relied upon certain decisions to substantiate his submissions.
10. Per contra, Sri Anand Kumar Kapur, who had lodged caveat on behalf of the respondent in the respective civil revision petitions, while making submissions had drawn the attention of this Court to the relevant portions of the orders, which are being challenged in these revisions and would maintain that in the light of the reasons recorded by the learned Judge absolutely there is no legal infirmity. The learned Counsel would also further contend that there is a case where after almost the evidence is coming to a close, the party wants to put in a pleading in accordance with the evidence and the same is impermissible in law. The Counsel would also submit that whether it is to be taken either as ‘omission’ or “admission” when a valuable right had accrued to the opposite party, the petitioner cannot he permitted to amend the pleading to annul such right that too at this distant point of time. Even otherwise, the Counsel would submit that in the written statement such plea was not taken after the evidence of DW. 1 also was over, at this stage taking such plea cannot be permitted. The Counsel also placed strong reliance on certain decisions.
11. Heard the Counsel and perused the orders made in the aforesaid applications. The respective pleadings also are placed before this Court apart from the affidavits filed in support of the applications and the counters filed resisting the said applications. The learned Judge recorded the dates of filing of the respective written statements in the suits, when the witnesses were examined and when these applications were moved.
12. Strong reliance was placed on a decision of Apex Court in B.K.N. Pillai v. P. Pillai and Anr. , wherein the Apex Court observed that in a suit for injunction seeking eviction of defendant on ground of his being licencee, he was not a licencee but a lessee. The application for amendment of written statement by defendant – praying incorporation of plea that in case he is not held a lessee, he is entitled to benefit of Section 60(b) of Easements Act, 1882. The said plea is neither inconsistent nor repugnant to pleas already raised in defence. The application cannot be rejected merely on ground of prolonged delay in filing, especially when plaintiff can be compensated by costs. Further it cannot be said that proposed amendment would amount to withdrawal of any admission made by defendant and that such withdrawal was likely to cause irretrievable prejudice to plaintiff.
13. Further strong reliance was placed on the decisions in Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. , Estralla Rubber v. Dass Estate (P) Ltd. and Sajjan Kumar v. Ram Kishan (2005) 13 SCC 89.
14. There cannot be any doubt that normally when an application for amending the pleading to be considered, the same cannot be rejected on the ground of delay alone. However, the applications praying for amendment of pleadings may have to be considered at present in the light of the language employed in Order VI Rule 17 of the Code. No doubt so far as the old matter is concerned, the proviso may not be applicable. Be that as it may, here is a case where written statement was filed at the earliest point of time. The witnesses also had been examined and may be on verification of records having detected the defects this plea of material alterations also is being put forth by way of amendment of pleadings.
15. Strong reliance was placed on the decision in Heeralal v. Kalyan Mal and Ors. , wherein the Apex Court held that if amendment of written statement, would amount to withdrawal of admission, such amendment is not permissible. The Apex Court held that the views expressed in Akshaya Restaurant v. P. Anjanappa and Anr. 1995 AIR SCW 2277, held per ineuriam and relied upon a decision in Modi Spinning and Weaving Mills Co. Ltd. and Anr. v. Ladha Ram and Co. , wherein the apex Court held at Paragraph Nos. 9 and 10 as hereunder:
The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in Paragraphs 25 and 26, of the written statement and substitute an entirely different and new case,
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.
16. Further the strength of the Judges also had been pointed out by the Counsel representing the respondent and would maintain that inasmuch as the views expressed by the three Judge Bench in the decision in Modi Spinning and Weaving Mills Co. Ltd. and Anr. v. Ladha Ram and Co. (supra), to prevail over the other judgment of two Judge Bench. The Counsel also relied upon another decision in Gajanan Krishnaji Bapat and Anr. v. Dattaji Raghobaji Meghe and Ors. , wherein the apex Court at Paragraph No. 86 observed as hereunder:
Section 86(5) of the Act deals with the amendment of an election petition. It lays down that the High Court may upon such terms as to costs or otherwise, as it deems fit, allow amendment in respect of particulars but there is a complete prohibition against any amendment being allowed which may have the effect of introducing either material facts not already pleaded or of introducing particulars of a corrupt practice not previously alleged in the petition. The first part of Section 86(5) of the Act, therefore, is an enabling provision while the second part creates a positive bar. Of course, the power of amendment given in the Code of Civil Procedure can be invoked by the High Court because Section 86 of the Act itself makes the procedure applicable, as nearly as may be, to the trial of election petition, but it must not be ignored that some of the rules framed under the Act itself over-ride certain provisions of the Civil Procedure Code and thus, the general power of amendment drawn from the Code of Civil Procedure must be construed in the light of the provisions of the election law and applied with such restraints as arc inherent in an election petition. It appears to us that the High Court did not properly consider the provisions of the election law while repeatedly allowing amendments of the election petition in the present case. The High Court allowed an application Ex.27 filed by the election petitioner for permission to amend the petition on 28.11.1991. Vet another application for amendment of the election petition, F.x.44 was again allowed by the High Court on 18.12.1991. The petitioner filed still another application, Ex.47 A, to again amend the election petition and the High Court allowed the same on 18.1.1992. Even after the pleadings were completed and the issues framed on 21st of January 1992 and a part of evidence had been led by the parties, the High Court allowed one more application filed by the election petitioner No. 1. Ex.701, and permitted an amendment of the election petition, apparently to bring the evidence in conformity with the pleadings. In the first place, the High Court ought not to have allowed evidence to be led by the election petitioners which was beyond the pleadings of the parties for no amount of evidence can cure a defect in the pleadings but it was all the more improper for the trial Court to have allowed the pleadings to be amended so as to be brought in conformity with the evidence already led in the case. To say the least, it was not a desirable or a proper course to be adopted in an election petition where, as pointed out by this Court in Jagannath v. Jaswant Singh , the statutory requirements of the law of election must be strictly observed. Of course, since evidence was allowed to be led, though beyond the pleadings without any objections from the opposite side, the Court could have evaluated and analysed the same to determine the worth of that evidence, which in the facts and circumstances of the case came under a cloud but to allow the amendment of the pleadings with a view to confer a ‘legal status’ on the evidence already led was to say the least improper. The reasons given by the learned trial Judge to allow the election petition to be amended repeatedly ignores the sanctity which is attached to the pleadings and the affidavit filed in support of an election petition, which under law is required to be filed within a prescribed time and those reasons do not impress us. We need say no more on this aspect of the case.
17. It is no doubt true that there is no specific admission relating to material alterations but however it can be taken as an omission to raise specific plea of material alterations at the earliest point of time. However, in view of the facts and circumstances of the case, this Court is satisfied that while deciding the said interlocutory applications, the findings recorded by the learned Judge touching certain merits and demerits of the matter which may have to be decided at the time of final disposal of the suits may not be operative for the reason that the such finding, if any, recorded to be taken as finding for the purpose of deciding the interlocutory applications and not beyond thereto.
18. Hence, the learned Judge to decide the main suits on their own merits depending upon the facts and circumstances. Except making the above observations, nothing else can be done in the light of the peculiar facts and circumstances of the case since the orders which had been challenged in these civil revision petitions do not deserve any interference at the hands of this Court under Article 227 of the Constitution of India in the light of the limitations imposed on this Court in exercise of the Revisional Powers conferred on this Court.
19. Subject to the observations made supra, both the civil revision petitions shall stand dismissed. No costs.
