Civil Revision No.5568 of 1999 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5568 of 1999 (O&M)
Date of decision: 29 .01.2009
Sagar Singh Slathia .............. Petitioner
Vs.
Surinder Pal Singh .............Respondent
Present: Mr. Anupam Gupta, Advocate
with Mr. Ashish Rawal, Advocate
for the petitioner.
Mr. Arun Jain, Sr. Advocate with
Mr. Amit Jain, Advocate and
Mr. Chetan Slathia, Advocate
for the respondent.
CORAM: HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
-.-
K.KANNAN, J.
I. Scope:-
1. An application for amendment of written statement in a Suit for
Specific Performance was allowed by the Courts below. The plaintiff is the
revision petitioner before this Court.
II. Facts giving rise to controversy:-
2. The Suit for Specific Performance had been filed to enforce an
agreement dated 07.04.1998 under the terms of which the defendant had
agreed to sell the property in Khasra No.845 of an extent of 2 kanals and 19
marlas situated in village Daulatpur, Tehsil Pathankot. The execution of the
agreement is an admitted fact. After the suit was instituted, defendant filed a
written statement on 05.12.1998 and on the same date moved an application
for direction to deposit the balance of sale consideration without prejudice to
the contentions of the written statement. The written statement itself
Civil Revision No.5568 of 1999 (O&M) -2-
conceded the execution of the agreement but after disputing the plaintiff’s
readiness and willingness to perform his part of the contract, the defendant
had stated that if the plaintiff would be prepared to act as per the terms of
document and if the balance of the sale consideration had been paid he would
be prepared to execute the sale deed. The Court, while disposing of the
application filed under Section 151 CPC directed the amount to be deposited
and adjourned the case to 05.02.1999. The plaintiff deposited the amount on
30.01.1999 and when the case was again heard on 05.02.1999 which had been
fixed earlier, the defendant moved the application for amendment. By virtue
of the amendment, the defendant projected a new case that the property had
been mistakenly described as situated in Khasra No.845, when what was
contemplated to be sold was only the property in Khasra No.844. He also took
up a plea that he was not exclusively the owner of the property but there were
other persons also who owned the same. It was his further contention that
while the agreement had described the property in Khasra No.845 to be land,
as the matter of fact, there was a building constructed in the property where he
had been living with his family. In effect, he was trying to resile from the
earlier contention in the written statement and in the petition filed under
Section 151 offering to act as per the terms of the agreement if the amount
was deposited by the plaintiff.
III. Disposition in Court below:-
3. The trial Court, on consideration of all the relevant facts and the
decisions cited by the counsel of both sides observed that the issue regarding
non-enforceability of the agreement and the so-called mistake as having crept
into, with reference of the property, allowed the application stating that it
would be always possible to explain whether the contentions of the defendant
attempted to be introduced by the amendment of the pleadings was correct and
not, only at the time of a full-fledged trial.
Civil Revision No.5568 of 1999 (O&M) -3-
IV. Contentions urged by counsel and purport of legal
submissions:-
4. Learned counsel for the revision petitioner urges essentially that the
agreement was very specific in terms and admitted of no ambiguity. The
defendant himself had not pleaded that there was any difficulty about
ascertaining the property and after having conceded the receipt of money for
execution of sale deed, a plea which demolished the earlier admission could
be permitted so as to defeat a valuable right accrued to the plaintiff to secure
the relief on the basis of such admission.
5. The learned counsel on both sides have relied upon decisions of the
Hon’ble Supreme Court and other Courts in support of their respective
contentions. The learned counsel appearing for the revision petitioner urges
before me that the decision of the privy council in Ma Shive Miya Vs. Maung
Mo Hnaung AIR 1922 Privy Council 249 set the law in its perspective that an
amendment could not be permitted to introduce a new case and take away the
fact of admission. A three bench of Hon’ble Supreme Court has settled the
law emphatically in Modi Spinning & Weeving Mills Co. Ltd. Vs. Radha
Ram & Co. AIR 1977 SC 680 in its references in paragraphs 8 to 10 that an
amendment of the written statement shall not be allowed, when the effect
would be to displace the plaintiff’s suit and deprive him of a valuable right
already accrued to him. A decision that side-stepped the long queue of
authorities in Akshaya Restaurant Vs. P. Anjanappa 1995 Supp (2) SCC 303
by a statement that an admission could be explained and permitted at any stage
was stated as per incuriam in a still later decision in Heera Lal Vs. Kalyan
Mal 1998(1) SCC 278 . An equally emphatic proposition relating to the
impermissibility of an amendment that would annul an admission was set out
in the decision in B. K. Narayana Pillai Vs. Paraneswaram (2000) 1 SCC
712 at 717.
6. Learned Senior Counsel for the respondent points out to the
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decision of Hon’ble Supreme Court in Usha Balashaheb Swami Vs. Kiran
Appaso Swami 2007 (1) RCR 458; (2007) 5 SCC 602 which summarised the
law relating to amendment of pleading thus:-
“Civil Procedure Code, Order 6 Rule 17-Amendment of pleadings-
Law summed up:-
(1) Court is conferred with power, at any stage of the
proceedings, to allow alteration and amendments of the
pleadings if it is of the view that such amendments may be
necessary for determining the real question in controversy
between the parties.
(2) Amendment can be allowed even after trial has commenced
if Court comes to conclusion that in spite of due diligence,
the party could not have raised the matter before the
commencement of trial.
(3) Courts should be liberal in granting the prayer for
amendment of pleadings unless serious injustice or
irreparable loss is caused to the other side or on the ground
that the prayer for amendment was not a bona fide one.(4) Prayer for amendment of the plaint and a prayer for
amendment of the written statement stand on different
footings-Even an admission in the pleadings can be
explained and inconsistent pleas can be taken in amendment
petition even after taking a definite stand in the written
statement.
(5) In the case of amendment of a written statement, the courts
are more liberal in allowing an amendment than that of a
plaint as the question of prejudice would be far less in the
former than in the latter case.
7. The Hon’ble Supreme Court has also referred to the decision of
Privy Council referred to by the learned counsel for the petitioner in AIR
1922 PC 249 (supra) and its own decision reported in 1998 (1) SCC 278. A
more apposite point explaining the contention of the respondent, according to
the respondent’s counsel, is the decision of the Hon’ble Supreme Court in
Puran Ram Vs. Bhaguram and Anr. 2008(2) RCR(Civil) 499 where, while
dealing with a case of plaintiff seeking to amend the pleadings in relation to
description of the property, the Hon’ble Supreme Court allowed such an
amendment against the recital in the document. In Basavan Jaggu Dhobi Vs.
Sukhnand Ramdas Chaudhary 1995 Supp (3) SCC 179, the Hon’ble Apex
Civil Revision No.5568 of 1999 (O&M) -5-
Court adverted to amendment of pleadings through a written statement that
took an inconsistent view to the original pleading and holding that it was
always possible for a defendant to take inconsistent pleas, said that the
defendant could not be barred by bringing an amendment for taking a plea
contrary to that originally taken. The Hon’ble Supreme Court had in an earlier
decision in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and another
AIR 1983 SC 462 adversely commented about the interference of the High
Court in revision to an order of the trial Court allowing an application for
amendment where the order impugned had permitted an amendment to be
brought seeking withdrawal of admission already made in the pleadings. The
other decisions that have permitted the pleadings to be amended that either
withdrew an admission or explained the admission have been reported in Bant
Singh Vs. Kuldeep Singh and another 1995 PLJ 13; Pavithran Vs.
Narayanan 1997 (4) RCR (Civil) 445; Jagroop Singh and another Vs.
Bhjna 1994 PLJ 616 and Gujjar Singh Vs. Gulzar Singh and others Vol.C-
(1991-2) PLR 266, all of which have permitted amendments to either explain
an admission or withdraw admission made in the in the earlier proceedings.
8. To my mind, the conspectus of decisions bring out following
propositions:-
(i) Amendment of pleadings could be introduced under the
circumstances which showed that there had been an
accidental mistake or error that required to be rectified
by appropriate altered pleadings or to bring to fore the
changed circumstances or position of law.
(ii) The attempt of the Court shall always be to secure the
truth and to advance the cause of justice. If any mistake
had arisen in the pleadings, parties should be allowed to
amend the pleadings.
Civil Revision No.5568 of 1999 (O&M) -6-
(iii) Admissions are the best form of evidence which a party
can rely against the other, but such admissions could
always be explained whether the admission was made
under the circumstances that either vitiated the
admission or explained the admission.
(iv) The amendment of pleadings are brought out only to
eliminate surprise at the trial for allowing the parties to
make the correct statements of facts, so that no fact
which is inconsistent with pleading is ever brought
before the Court through documents or evidence.
(v) The pleadings form the bedrock of the legal edifice
brought to Court for adjudication and if there has been
any inadvertent error, it shall be not allowed to come in
way to fetter the rights of parties interminably.
9. To the credit of the counsel for the revision petitioner, it must be
stated that the counsel also brought to my attention a decision in Baldev
Singh Vs. Manmohan Singh 2006 (4) SCC 498 which spelt out a new
paradigm in that it declared that while considering applications for
amendment of pleadings, the Court shall be more lenient in the matter of a
written statement filed by a defendant than a plaintiff’s plaint. The learned
counsel said that this decision ought not to be taken as stating any law which
was wholly different from the general march of law that has taken place
relating to admissions and spelt out forcefully in the decision of AIR 1922 PC
249 (supra) and two decisions in AIR 1977 SC 680 and 1998 (1) SCC 278
(supra) that admissions made once cannot be whittled down by inconsistent
pleadings introduced through amendments.
V. To permit amendment or not, the test
10. The question whether an amendment could be made or not, could
Civil Revision No.5568 of 1999 (O&M) -7-
be tested on the touchstone of what will emerge if the amendment is not
allowed. We have at hand a case where the defendant expressed that he is
willing to execute a sale deed, if the plaintiff deposited the money within the
time. The plaintiff had also complied with the directions of the Court. There
was hardly an issue for adjudication and the plaintiff would have secured the
relief coach and four on the admission made by the defendant. The plaintiff
would have secured a decree for a land in Khasra No.845 and while putting it
in execution may have been confronted with the building thereon. It might
have been possible for the decree to be stalled in execution or the plaintiff
could have still shown that what he had agreed to purchase was only the land
in Khasra No.845 and if there was building he was entitled to have the
building removed and delivered. If the amendment were to be allowed and
issues had to be framed, the relevant issue would be whether the parties were
ad idem regarding the sale of a property which was a land or whether they
thought of executing the sale in respect of land with building but without
reference to the building. It would be left to the Court to still consider
whether a decree could be granted by exercising its discretionary jurisdiction
spelt out under Section 20 of the Specific Relief Act or not.
11. An adjudication which would finally decide the rights of paties by
allowing the parties to go to trial with a whole set of facts in their command
would be most ideal for, our common experience in India has been that the
litigation commences not at the time of institution of the suit but really
assumes potency only after the decree is obtained and when it is put in
execution. An amendment of pleadings that throws out the grave portents of
fresh defence at the stage of execution is verily a possibility that we will have
to stave off.
12. If, in this case, the property had been described as land and
building and the agreement had related to the building also, there could have
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been no scope for amendment. If again the property in Khasra No.845 had
been admitted to be merely a land and not building, the question of
introducing an amendment would not have arisen. The contention of the
defendant about the existence in Khasra No.845 of not merely a land but also
building brings a wholesome defence. Perhaps, it might still be contended by
the plaintiff that there is no building at all. Under the circumstances, what
was intended to be sold is a core controversy and that could not have been
undertaken, unless all the facts relating to the property in the manner in which
the parties respectively understood.
VI. Conclusion:-
13. I have, after a careful consideration of the reasoning adopted by the
trial Court, come to the conclusion that in the given circumstances, the order
of the Courts below was correct. However, the deposit of money in Court is
no longer necessary. After all, the defendant does not admit his liability to
execute the sale deed, as of present. The plaintiff shall be permitted to
withdraw the amount directed earlier to be deposited by him. The order of the
Court below is hereby confirmed subject to the right of taking back the
amount deposited by him for the present. After the amendment is carried out
in the pleadings, the plaintiff shall be permitted to file a reply to bring out the
aspects as contended by him. There could be no fetter on the right of the
plaintiff to even show that the inconsistent pleadings that had been introduced
by the defendant was a deflection from truth. After the reply to the written
statement is permitted to be filed to the plaintiff, the Court shall frame the
necessary issues and take up for adjudication as expeditiously as possible.
14. With the observations made above, the civil revision petition is
disposed of. No costs.
(K. KANNAN)
JUDGE
January 29 , 2009
Pankaj*