ORDER
K.K. Lahoti, J.
1. The defendant has assailed the order dated 23-10-2003 by which the Second Additional District Judge, Bhopal in Civil Original Suit No. 3-A/2003 rejected the application filed by the petitioner under Order 6 Rule 17 of Code of Civil Procedure.
2. Short facts of the case are that the petitioner engaged Shri Sanjiv Sharma, Advocate who filed written statement on behalf of the petitioner on 18-6-2003. It is stated that in the aforesaid written statement, petitioner made various admissions of the plaint. It is also alleged that aforesaid written statement was got prepared by plaintiff through his Counsel of Indore and the facts stated in the written statement were not in the knowledge of the petitioner and without knowledge and consent, the written statement was got signed by the Counsel. Immediately on knowledge on 20th June, 2003, petitioner filed an application before the Trial Court for rejection of the written statement. As there was no provision in this regard, so the prayer was rejected. Thereafter, petitioner filed an application under Order 6 Rule 17 of the Code seeking various amendments in the written statement. This application was contested by the plaintiff on the ground that by change of Advocate, the petitioner can not withdraw the admissions. The Trial Court considering the contention of the parties and facts of the case, rejected the application on the ground that by the proposed amendment, the petitioner is withdrawing various admissions, and has made averments supporting the case of defendant No. 3. Aggrieved by the order, petitioner filed this petition.
3. The learned Counsel appearing for petitioner submits that respondent Ramchand Motwani filed a suit for specific performance against the petitioner. This suit was filed on 25-3-2003. Before filing of the suit, the petitioner alienated the property in favour of respondent Rakesh Yadav on 6-11-2000. This event occurred prior to filing of the suit. The petitioner being an agriculturist was deceived by the plaintiff and the written statement prepared by the plaintiff was filed before the Trial Court. On knowing the facts stated in the written statement, the petitioner immediately on 20th June, 2003 filed an application for rejection of the written statement. This fact shows that the plaintiff played fraud and immediately on knowing the fact, the application was filed by the petitioner. Though the application for rejection of the written statement was rejected, but subsequently on 1-9-2003, petitioner moved an application for amendment of the written statement. The circumstances were explained by the petitioner in which the aforesaid admission was sought to be withdrawn. He submits that the admission may be explained or withdrawn by the petitioner, which is permissible under the law. The petitioner has explained the circumstances in which the alleged admissions were made. It is not a case in which the admission has been sought to be withdrawn after a lapse of sufficient time but immediately within a period of 2 days, the petitioner moved such application showing that fraud was played with the petitioner and on rejection of the first application dated 20th June, 2003, another application was filed by the petitioner which has wrongly been rejected by the Trial Court. He has placed reliance on Single Bench judgment in the case of Harbans Lal v. Dev Raj and Ors., 2003 AIHC 3277. In Paras 6 and 8 of the judgment, it is held :-
“6. Having heard the learned Counsel, I am of the considered view that this revision petition lacks merit and is liable to be dismissed. It is true that the defendant/respondents have admitted the case of the plaintiff/petitioner, but after the filing of the written statement on 13-6-1990, an application was filed within three months explaining in which circumstances the admissions were made. The Civil Judge being conscious of the fact that admissions were made, framed an issue, recorded the evidence and reached a finding that admissions made were erroneous. Therefore, it can not be said that it was admission of such a kind which remained unexplained. It is well settled that erroneous admissions could be validly explained and on such basis amendments could always be allowed to be incorporated. This proposition has been laid down by the Supreme Court in the cases of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 : (AIR 2001 SC 3295) and Gurdial Singh v. Raj Kumar Aneja, (2002) 2 SCC 445 : (AIR 2002 SC 1003). It is further clear that even if the amendment is declined by allowing the present revision petition, the suit may not necessarily be disposed of because there is no obligation on the Trial Court that on the presentation of the plaint and on admission of averments therein, the Court must pass a decree in favour of the plaintiff/petitioner because it has to record its satisfaction. The Court can always take the view and direct the plaintiff/petitioner to lead evidence to prove his/her case. This proposition has been laid down by the Supreme Court in K.K. Chari v. R.M. Seshadri, (1973) 1 SCC 761 : (AIR 1973 SC 1311). Thus there is no obligation on the Court that on the filing of the written statement in which averment made in the plaint has been admitted, the suit must be decreed. In cases where no written statement has been filed as provided by Order 8 Rule 10 of the Code, the Supreme Court has held that even if the facts pleaded in the plaint arc admitted then it can not be said that the Court must pass a decree in favour of the plaintiff. Referring to the provisions of Order 8 Rule 10 of the Code, Their Lordships of the Supreme Court in the case of Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 : (AIR 1999 SC 3381) observed as under :-
“As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the Court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10, CPC. Before passing the judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the Court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to. prove the facts so as to settle the factual controversy. Such a case would be covered by the expression” the Court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order 8; or the expression may make such order in relation to the suit as it thinks fit used in Rule 10 of Order 8.
8.I am further of the view that in allowing amendments from the side of the defendant/respondents, very liberal view has been taken by the Supreme Court in various decisions. In the case of Prem Bakshi v. Dharam Dev, (2002) 2 SCC 2 : (AIR 2002 SC 559), Their Lordships of the Supreme Court held that amendments which are necessary to decide the controversy raised before the Court ordinarily are to be allowed because it would avoid multiplicity of litigation. It was further observed that orders allowing the amendments ordinarily should not be interfered with under Section 115 of the Code and the revision petition would not be maintainable.”
4. The learned Counsel for petitioner submits that if the impugned order remains in existence, it will cause injustice to the petitioner and fraud played by the ‘plaintiff will prevail. The Trial Court erred in rejecting the application filed by the petitioner, while in peculiar facts and circumstances it ought to have been allowed. The petitioner immediately on knowing the fraud, moved to the Trial Court which ought to have allowed the application.
5. The learned Counsel appearing for respondent No. 1 supported the order passed by the Court below and contended that the petitioner on one hand has made admission in favour of plaintiff and on the other hand sought withdrawal of the admissions, and now supporting the case of respondent No. 2. The petitioner has not come with clean hands and can not be permitted to withdraw admissions and by introducing entire new case. He has placed his reliance to a Single Bench judgment of this Court in Hansa Devi v. Bachchalal, 2001(5) M.P.H.T. 116 = 2002(1) MPLJ 122 in which the learned Single Judge held in Paras 23 and 24, thus :-
23. It is, therefore, clear that though it is true that Order 6 Rule 17 and Order 8 Rule 9 of the Civil Procedure Code confers wide discretion in the Court to permit amendment and to require a written statement or additional written statement of any of the parties. However, such powers are to be exercised ex debito juslitiae. The Court shall exercise discretionary powers vested in it only to advance the cause of justice. It can not be exercised in a case so as to enable the defendant to change the whole nature of his case and to withdraw all admissions based on specific grounds. The defendant, without special and adequate reasons, can not be permitted to raise the contention, which is totally inconsistent with his earlier stand.
24. In the instant case, as noted above, the circumstances of the case do not justify the prayer of the non-applicant No. 2 Jitendra Kumar to file additional pleadings. The prayer, if allowed, would cause serious prejudice to the case of the petitioner/purchaser. The said prayer also docs not appear to be based on justifiable grounds and does not appear to be bona fide. Hence, in the circumstances, the discretion exercised by the Trial Court permitting the defendant/non-applicant No. 2 Jitendra Kumar, to file additional written statement and raise pleas which were totally inconsistent with the earlier stand taken by him and withdrawal of the pleas raised earlier, appears to be grossly erroneous and can not be permitted to stand.”
It is submitted that in view of the law in Hansa Devi’s case (supra), based on various Supreme Court’s judgments, this petition deserves to be dismissed with costs.
6. To appreciate rival contentions of the parties, it is apparent that the petitioner filed the written statement on 18-6-2003. On 20th June, 2003, petitioner moved an application before the Trial Court that the written statement was got prepared by the plaintiff from his Counsel at Indore and it was filed without his knowledge. Though the Trial Court rejected the application filed by the petitioner for withdrawal of the written statement, but subsequently when petitioner moved an application explaining aforesaid circumstances and sought amendment of the written statement, then the aforesaid facts ought to have been considered properly by the Trial Court. When a fraud is played on a party, it is the duty of the Court to consider all facts and circumstances of the case and should consider the application in that perspective. The fact that previously petitioner made admission and subsequently he withdrawn his admission, this fact will always remain on record and after recording the evidence, the Court will be free to consider this aspect. But the application filed by the petitioner seeking amendment in peculiar circumstances of the case, when the petitioner immediately moved to the Trial Court in this regard, the application filed by the petitioner ought not to have been rejected. In similar facts, the Punjab and Haryana High Court in Harbans Lal’s case (supra) has considered the fact and allowed the application. It is not a case wherein the admission was sought to be withdrawn after a long lapse of time. in Hansa Devi’s case (supra), a joint written statement was filed on behalf of defendant Nos. 1 and 2. Subsequently, it was averred that defendant No. 1 or defendant No. 2 has not put their signature on the alleged agreement and the document was stated to be forged. During the pendency of the suit, one defendant, the executant of the agreement, died. Thereafter another defendant filed an application after about 2 and half years of the death of the defendant under Order 6 Rule 17 of CPC praying thereby that he may be permitted to file additional written statement, in modification of the earlier written statement filed by his predecessor. It was stated in his application that the said joint written statement did not stale the true facts. In the additional written statement the defendant No. 2 look the plea that there was an agreement between his mother, the deceased defendant No. 1 for the sale of the property and other allegations of the plaintiff in regard to said agreement were also admitted. This application was allowed by the Trial Court, which was challenged before the High Court and the High Court by the aforesaid order set aside the order passed by the Trial Court allowing withdrawal of admissions and looking to the irretrievable prejudice to co-defendant, rejected the application filed by the defendant under Order 6 Rule 17, CPC. It is also pertinent to mention here that during the pendency of the suit, defendants transferred the property in favour of another defendant/petitioner. In the circumstances, when the defendants initially disputed the agreement and subsequently on transfer of the property to other defendants has sought permission to file additional written statement admitting the claim of the plaintiff. In those circumstances, the additional written statement was declined by the High Court. The facts of the aforesaid case are entirely different and do not apply in the present case.
7. In this case, the plaintiff filed a suit for specific performance of the contract against the petitioner based on agreement dated 20-3-1989, In this case, petitioner engaged Shri V.P. Singh, Advocate to file written statement. Plaintiff also filed another application for issuance of temporary injunction in the suit. The case was fixed for 18-6-2003 for filing written statement and for reply of the application for temporary injunction. On 18-6-2003, another Counsel Shri Sanjiv Sharma filed written statement on behalf of the petitioner in which various facts of plaint were admitted. On 18-6-2003 itself in the first round, when the case was called, Shri V.P. Singh, Counsel sought adjournment for filing reply of the application for temporary injunction and the case was fixed for 23-6-2003. But subsequently on the same day written statement was filed by another Advocate. On 20-6-2003, the petitioner moved an application for return of the written statement filed by Shri Sanjiv Sharma on behalf of the petitioner. This application was rejected by the Trial Court on the ground that there is no provision for return of the written statement. Thereafter petitioner filed an application under Order 6 Rule 17, CPC by which the petitioner sought amendment of the written statement placing certain facts on record and also sought withdrawal of some admissions which were made in written statement dated 18-6-2003.
8. Considering facts of the case, it is apparent that petitioner engaged Shri V.P. Singh, Counsel to appear in the case. The date of hearing was fixed as 18-6-2003 for filing written statement and reply of application for temporary injunction. On 18-6-2003 this case was transferred from Fourth Additional District Judge, Bhopal to the Court of Second Additional District Judge, Bhopal. On 18-6-2003, defendant No. 1 through his Counsel, Shri V.P. Singh sought adjournment for filing written statement and reply of temporary injunction application and the case was adjourned to 23-6-2003. On the same day subsequently, Shri Sanjiv Sharma, Counsel appeared on behalf of defendant No. 1 and filed written statement and reply of the application for temporary injunction and the case was fixed for 23rd June, 2003. On 20th June, 2003, defendant Khusi Lal (petitioner) along with Counsel Shri Atul Srivas filed an application under Section 151, CPC. The case was fixed for 30th June, 2003. On 30-6-2003, plaintiff filed reply of the aforesaid application and case was fixed for 1-7-2003. The aforesaid facts show that the written statement filed on 18-6-2003 through Counsel Shri Sanjiv Sharma was immediately protested by filing an application under Section 151, CPC on 20th June, 2003. It is also apparent that previously Shri V.P. Singh was appearing on behalf of petitioner and as per allegations, he has not consented to Shri Sanjiv Sharma to appear in the case, and within a period of two days of filing of the written statement before the Trial Court, the written statement was sought to be withdrawn narrating the facts that it was got prepared by plaintiff through his Counsel at Indore and the facts in the written statement arc not in the knowledge of the petitioner and the said written statement is without consent of the petitioner. The aforesaid all the facts show circumstances which are justifying action of the petitioner. Though the Trial Court ought to have enquired into the facts of filing the application, but in this case the application filed by the petitioner under Section 151, CPC was rejected, as there is no provision for return of the written statement. Thereafter, the petitioner moved the application for amendment of the written statement praying aforesaid relief. In peculiar facts, the petitioner has sought withdrawal of the admission. The written statement which was filed on 18-6-2003 was immediately protested by the petitioner on 20th June, 2003 within a period of two days from the date of filing of the written statement and thereafter this application has been filed for explaining the circumstances and for amendment of written statement. The Counsel who filed the written statement was required to obtain written permission from the previous Counsel to appear on behalf of the petitioner. On 18th June, 2003 in the early part of the hours, Shri V.P. Singh, Counsel sought adjournment to file written statement and reply of the application for temporary injunction which was granted. Thereafter on the same day, this written statement and reply of the application was filed by another Counsel and on 20th June, 2003, it was protested. In the application filed by the petitioner under Order 6 Rule 17, CPC, all these facts have been narrated in detail and in the interest of justice, either those facts have enquired into by the Trial Court or the Trial Court relying on the aforesaid facts, have permitted the petitioner to amend the written statement. In the suit, it is not in dispute that before filing of the suit, the suit property was alienated on 6-11-2000 to defendant No. 3. On 18-6-2003 when the alleged written statement was filed admitting the claim of the plaintiff, the petitioner already alienated his rights in favour of defendant No. 3 and had lost his interest in the suit properly. In the circumstances, the alleged admission made by the petitioner in favour of plaintiff will not substantially affect the rights of defendant No. 3 and it will not bind defendant No. 3 in any manner under Section 18 of the Evidence Act.
9. In view of the peculiar facts and circumstances of the case, the Court erred in rejecting the application filed by the petitioner for amendment of the written statement. The order passed by the Court is hereby quashed and the application filed by the petitioner under Order 6 Rule 17, CPC is allowed. The cost deposited by the petitioner in compliance of the order dated 21-11-2003 shall be payable to respondent No. 1 plaintiff. The petitioner is permitted to amend the written statement within a period of two weeks from the date of communication of this order to the Trial Court. The Trial Court after permitting the petitioner to amend the written statement shall proceed in the case in accordance with law. No order as to costs.