{"id":247054,"date":"1997-11-19T00:00:00","date_gmt":"1997-11-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/heeralal-vs-kalyan-mal-ors-on-19-november-1997"},"modified":"2015-03-21T15:38:32","modified_gmt":"2015-03-21T10:08:32","slug":"heeralal-vs-kalyan-mal-ors-on-19-november-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/heeralal-vs-kalyan-mal-ors-on-19-november-1997","title":{"rendered":"Heeralal vs Kalyan Mal & Ors on 19 November, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Heeralal vs Kalyan Mal & Ors on 19 November, 1997<\/div>\n
Author: S Majmudar<\/div>\n
Bench: S.B. Majmudar, M Jagannadha Rao<\/div>\n
           PETITIONER:\nHEERALAL\n\n\tVs.\n\nRESPONDENT:\nKALYAN MAL & ORS.\n\nDATE OF JUDGMENT:\t19\/11\/1997\n\nBENCH:\nS.B. MAJMUDAR, M JAGANNADHA RAO\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 19TH DAY OF NOVEMBER, 1997
\nPresent:\n<\/p>\n
\t     Hon’ble Mr. Justice S.B. Majmudar
\n\t     Hon’ble Mr. Justice M. Jagannadha Rao
\nSushil Kumar Jain, Pradeep Aggarwal, A.P. Dhamija, Advs. for
\nthe appellant
\nA.K. Goel, and Mrs. Sheela Goel, Advs. for the Respondents.\n<\/p>\n
\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\nS.B. Majmudar, J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     Heard learned  counsel for\t the appellant\tas  well  as
\nlearned advocate  for respondent  nos.\t1  and\t2,  who\t are
\noriginal defendant  nos. 1 and 2 and are the only contesting
\nparties in  this appeal.  The appeal  was taken up for final
\ndisposal forthwith by their consent.\n<\/p>\n
     Appellant-Plaintiff  had\tfiled  a   civil  suit\t for
\npartition of  10 items\tof immovable properties mentioned in
\nschedule-A of  the plaint  and also  for partition  of other
\nproperties listed  in Schedule-B of the plaint. The suit was
\nfiled in  1993 in  the Court  of District  Judge, Bundi\t for
\npartition  of  the  suit  properties  mentioned\t in  diverse
\nschedules annexed  to the  plaint. The contesting respondent
\nnos. 1\tand 2,\twho are\t defendant nos.1  and 2 in the suit,
\nbeing real  brothers of\t the plaintiff filed a joint written
\nstatement on  01st October  1993 in  the Trial Court. In the
\nwritten\t statement   a\tdefinite  stand\t was  taken  by\t the
\ncontesting defendants  that out\t of the listed properties in
\nSchedule-A only\t three properties  at items  4,9 and 10 were
\nexclusively belonging  to the contesting defendants and were
\nnot joint  family properties  of the plaintiff and defendant
\nnos.  1\t  and  2.  Meaning  thereby  that  the\tother  seven
\nproperties listed  in Schedule-A  were admitted\t to be joint
\nfamily properties.  Not only  that but\tin para\t 11  of\t the
\nwritten statement  it was  submitted that  ‘the plaintiff is
\nonly entitled  for partition  regarding\t the  properties  of
\nSchedule-A except  items 4,9  and 10  and all the properties
\nmentioned in  Schedule-B. They\talso stated in the said para
\n11  of\tthe  written  statement\t that  so  far\tas  admitted
\nproperties were\t concerned, the\t plaintiff was\tentitled  to
\n1\/3rd share  and remaining 2\/3rd share belonged to defendant
\nnos. 1\tand 2.\tIt appears that thereafter the suit remained
\npending for  trial for\tnumber of years. On the basis of the
\naforesaid stand\t taken by  the\tcontesting  parties  in\t the
\nwritten statement,  issues were\t framed by  the Trial Court.
\nIssue No.2. amongst others, read as under:\n<\/p>\n
     “Whether the  property mentioned in
\n     Item No.4,\t 9 & 10 of Schedule “Aa”<\/p><\/blockquote>\n
\n     attached with  the\t plaint\t is  the\n     property\tof    Hindu    Undivided\n     Family?\"\n<\/pre>\n
     Obviously this  issue was\tframed in  the light  of the
\nadmission  of  the  contesting\tdefendants  in\tthe  written
\nstatement that\trest of\t the items listed in Schedule-A were
\njoint family  properties wherein  the plaintiff\t had a share
\nalong with the defendants.<\/p><\/blockquote>\n
     In the light of the aforesaid admitted position between
\nthe parties  qua these\tproperties the\tplaintiff  moved  an
\napplication for appointment of a receiver in connection with
\n7 admitted  properties in  Schedule-A. It  was at that stage
\nand that  too after  a passage\tof about  18 months from the
\nmoving of  such application  for appointment  of receiver by
\nthe appellant  that defendant  no.1  came  forward  with  an
\namendment application to amend his written statement. In the
\namendment application  it  was\tsubmitted  that\t because  of
\nincomplete information\tsupplied by  him to  his counsel the
\nwritten statement  came to  contain the so-called admissions
\nregarding 5  out of  7 items of the properties in schedule-A
\nand that  he  had  suffered  a\theart  attack  in  1989\t and
\ntherefore when\tthe written statement was moved in 1993 this
\nerror crept  in. He also wanted to insert a further averment
\nin the\twritten statement  regarding  Schedule-6  properties
\nthat they  had ceased  to remain  in possession of defendant
\nno.1 and  were in  possession of  trespassers. Learned Trial
\njudge took  the view  that the application for amendment was
\nnot a  bone fide  on and  it was  moved only  with a view to
\nprotract the  proceedings as  the suit\twas at\tthe stage of
\ntrial by  then. learned\t Trial Judge  was  not\tinclined  to
\naccept the  reasons put forward for moving such an amendment
\napplication at\tsuch a\tlate stage  and that too for getting
\nout of\tthe admissions\tmade by\t defendant nos.\t 1 and\t2 in
\nconnection with the relevant suit properties. The result was
\nthat the  amendment application\t was  dismissed.  The  first
\ndefendant carried  the matter  in revision under Section 115
\nof the\tCode of\t Civil procedure  (`CPC’)  before  the\tHigh
\nCourt. Learned\tsingle Judge of the High Court who heard the
\nrevision application  was of  the view\tthat it\t was settled
\nlegal  position\t  that\tadmissions  made  earlier  could  be
\nexplained and  could be\t given a  go by in appropriate cases
\nand as\tdefendant no.1\twanted\tto  go\tbehind\this  earlier
\nadmission which\t amounted to  an inconsistent  stand on\t his
\npart, such  an inconsistent stand in written statement could
\nnot be\tsaid to\t be prohibited\tby the\tprocedural law.\t For
\narriving at  that conclusion  of his,  reliance was paced on
\nsome of the judgements. of this Court to which our attention
\nwas invited  by the  learned counsel  for the respondents in
\nsupport of  the\t judgment  and\tto  which  we  will  make  a
\nreference hereafter.  Resultantly,  the revision application
\nmoved by  the respondent was allowed by the High Court. That
\nis how the plaintiff is before us in this appeal.\n<\/p>\n
     In our  view, the\torder passed by the High Court under
\nSection 115, CPC,   allowing\twithdrawal     of    earlier
\nadmissions of  defendant  nos.1\t and  2\t in  their  original
\nwritten statement  about 5  out of  7 items  of Schedule  -A
\nproperties cannot  be sustained.  The reason  is obvious, so
\nfar  as\t  Schedule-A  properties  were\tconcerned,  a  clear
\nadmission was  made by defendant nos. 1 and 2 in their joint
\nwritten statement  in 1993  that 7 properties out of 10 were
\njoint family  properties wherein  the  plaintiff  had  1\/3rd
\nshare and  they had 2\/3rd undivided share. Once such a stand
\nwas taken,  naturally it  must be  held that  there  was  no
\ncontest between\t the  parties  regarding  7  items  of\tsuit
\nproperties  in\t Schedule-A.  The   learned   Trial   Judge,
\ntherefore, was\tperfectly justified  in framing\t Issue\tNo.2
\nconcerning only\t remaining three  items for  which there was
\ndispute between the parties. In such a situation under order
\nXV Rule\t 1  of\tCPC  the  plaintiff  even  would  have\tbeen
\njustified in  requesting the  court to\tpass  a\t preliminary
\ndecree forthwith  qua these 7 properties. The said provision
\nlays down  that, where\tat the\tfirst hearing  of a  suit it
\nappears that the parties are not at issue on any question of
\nlaw of\tfact, the Court may at once pronounce the judgment’.
\nEven that  apart, the defendant-respondents did not think it
\nfit to\tmove any  amendment application\t for getting  but of
\nsuch admission\ttill the  plaintiff moved an application for
\nappointment  of\t  receiver  regarding\tadmitted  items\t  of
\nproperties. It\tis only\t thereafter that the application for
\namendment was  moved. Learned  Trial Judge was right when he
\nobserved that  even the\t grounds made out in the application
\nwere not  justified. Consequently,  there is  no question of
\ntaking inconsistent  stand which  would\t not  have  affected
\nprejudicially the  plaintiff as\t wrongly assumed by the High
\nCourt. We also fail to appreciate how the decisions on which
\nstrong reliance\t was placed  by the  learned counsel for the
\nrespondents can\t be of any assistance to him. We may briefly
\nrefer to them.\n<\/p>\n
     In the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas
\nChaudhary (Dead) Through LRs. and others [1995 Supp. (3) SCC
\n179] the  plaintiff had filed a suit claiming that defendant
\nwas a  licensee whose licence was terminated and, therefore,
\npossession under  Section 41  of the presidency small Causes
\nCourt. Act  Should be  granted to  him The defendant earlier
\ntook up\t a stand  that he  was a  joint\t tenant\t along\twith
\nothers. Subsequently  he tried\tto rely upon Section 15-A of
\nthe Bombay Rents, Hotel and Lodging House Rates control Act,
\n1947 by\t submitting that  he was  a  licensee  for  monetary
\nconsideration who  was deemed  to be  a tenant\tas  per\t the
\nprovisions of  the said section. This Court held that such a
\ndefence which  is inconsistent could have been validly taken
\nby the defendant. It has to be appreciated that in that case
\neven though  inconsistent stand was permitted to be taken by
\nthe defendant,\tthe stand by itself did not seek to displace
\nany admission  on the part of the defendant in favour of the
\nplaintiff. The\tdefendant from\tthe inception contended that
\nthe plaintiff’s\t suit should  be dismissed but the ground on
\nwhich dismissal\t was claimed  was sought to be changed by an
\nalternative plea.  Therefore, there  was no  question of any
\nprejudice to the plaintiff if such an inconsistent stand was
\nallowed. That  is how  this Court  in the aforesaid decision
\nheld that  such amendment  in written  statement could\thave
\nbeen granted.  Such is\tnot the\t case before us. Here if the
\namendment is  granted, the  whole case\tof the plaintiff qua
\nadmitted joint\tfamily properties would get displaced as the
\ndefendants themselves  had in clear terms admitted that in 7
\nitems  of  properties  in  Schedule-A  plaintiff  had  1\/3rd
\nundivided interest.  On that  basis even  preliminary decree
\ncould have  been passed\t by the court at that stage. As that
\nright which  had accrued to the plaintiff, as noted earlier,
\nwould be irretrievably last if such amendment is allowed qua
\nfive of\t these seven  items in\tSchedule-A of the plaint for
\nwhich by  the impugned amendment the earlier admissions were
\nsought to be recalled.\n<\/p>\n
     Our attention was also invited to another decision of a
\nbench of  two learned  judges of  this Court  in the case of
\nAkshaya Restaurant  v. P.  Anjanappa and<\/a> another [1995 Supp.
\n(2) SCC 303]. In that case the plaintiff had filed a suit on
\nthe basis  of an  agreement of\tsale  entered  into  by\t the
\ndefendant with\tthe plaintiff  agreeing\t to  sell  the\tsuit
\nproperty for a sale consideration of Rs. 29,87,000\/- on 25th
\nJanuary 1991.  The defendant  in the  written statement\t had
\nearlier stated\tthat it\t was true that the defendant entered
\ninto such  an agreement\t but by an amendment an averment was
\nsought to  be introduced  in the  written statement  to\t the
\neffect that  it is  incorrect to  state that  the  defendant
\nagreed to  enter into agreement of sale. it is true that the
\ndefendant had  entered into  an agreement with the plaintiff
\non 25th\t January 1991 but it was for development of the suit
\nschedule land  for the\tmutual benefit\tof the parties. This
\namendment was held to be justified by this Court.\n<\/p>\n
     Now it  is easy  to visualize  on the facts before this
\nCourt in the said case that the defendant did not seek to go
\nbehind his  admission that  there was  an agreement  of 25th
\nJanuary 1991 between the parties but the nature of agreement
\nwas sought  t be  explained by\thim by\tamending the written
\nstatement by submitting that it was not agreement of sale as
\nsuch but  it was  n agreement  for development\tof land. The
\nfacts  of  the\tpresent\t case  are  entirely  different\t and
\nconsequently the  said decision\t also cannot  be of any help
\nfor the learned counsel for the respondents. Even that apart
\nthe said  decision of  two learned judges of this Court runs
\ncounter to  a decision of a Bench of three learned judges of
\nthis court  in the case of Modi Spinning & Weaving Mills Co.
\nLtd. &\tAnr. v.\t Ladha Ram & Co.<\/a> [(1977) 1 SCR 728]. In that
\ncase Ray,  CJ., Speaking  for the  Bench had to consider the
\nquestion whether  the defendant\t can be allowed to amend his
\nwritten statement by taking an inconsistent plea as compared
\nto the\tearlier plea  which contained an admission in favour
\nof the plaintiff. It was held that such an inconsistent plea
\nwhich  would   displace\t the  plaintiff\t complete  from\t the
\nadmissions made\t by the defendants in the written statements
\ncannot be  allowed. If\tsuch amendments\t are allowed  in the
\nwritten statement plaintiff will be irretrievably prejudiced
\nby being  denied the opportunity of extracting the admission
\nfrom the  defendants. In  that case  a suit was filed by the
\nplaintiff for  claiming a  decree for Rs. 1,30,000\/- against
\nthe defendants.\t The defendants\t in their  written statement
\nadmitted that by virtue of an agreement date 07th April 1967
\nthe  plaintiff\tworked\tas  their  stockist-cum-distributor.
\nAfter three  years the defendants by application under order
\nVi  Rule   17  sought  amendment  of  written  statement  by
\nsubstituting paragraphs\t 25 and\t 26 with  a new paragraph in
\nwhich they took the fresh plea that plaintiff was mercantile
\nagent cum-purchaser,  meaning  thereby\tthey  sought  to  go
\nbehind their  earlier admission that plaintiff was stockist-
\ncum-distributor. Such  amendment was  rejected by  the Trial
\nCourt and  the said rejection was affirmed by the High Court
\nin Revision.  The said decision of the High Court was upheld
\nby this\t Court by observing as aforesaid. This decision of a
\nBench of  three learned judges of this the written statement
\ncontains  an  admission\t in  favour  of\t the  plaintiff,  by
\namendment such admission of the defendants cannot be allowed
\nto be  withdrawn if  such withdrawal would amount to totally
\ndisplacing the\tace of\tthe plaintiff  and which would cause
\nhim irretrievable  prejudice.  Unfortunately  the  aforesaid
\ndecision of three member Bench of this Court was not brought
\nto the\tnotice of  the Bench  of  two  learned\tjudges\tthat
\ndecided the  case in  Akshaya  Restaurant  (supra).  In\t the
\nlatter case  it was  observed by  the Bench  of two  learned
\njudges that  it was  settled law that even the admission can
\nbe explained  and even\tinconsistent pleas could be taken in
\nthe pleadings. The aforesaid observations in the decision in
\nAkshaya Restaurant  (supra) proceed  on an assumption tat it
\nwas the settled law that even the admission can be explained
\nand even inconsistent pleas could be taken in the pleadings.
\nHowever the  aforesaid decision of the three member Bench of
\nthis Court  in Modi  Spinning (supra)  is to the effect that
\nwhile granting\tsuch  amendments  to  written  statement  no
\ninconsistent or\t alternative plea can be allowed which would
\ndisplace the  plaintiff’s case\tthe cause  him irretrievable
\nprejudice.\n<\/p>\n
     Consequently it  must be  held that  when the amendment
\nsought in  the written\tstatement was  of such\tnature as to
\ndisplace the  plaintiff’s case\tit could  not be  allowed as
\nruled by a three member Bench of this Court. this aspect was
\nunfortunately not  considered by latter Bench of two learned
\nJudges and to the extent to which the latter decision took a
\ncontrary view  qua such\t admission in  written statement, it
\nmust be held that it was per incuriam being rendered without
\nbeing given  an opportunity to consider the binding decision
\nof a three member Bench of this Court taking a diametrically
\nopposite view.\n<\/p>\n
     We were then taken to another decision of this Court in
\nthe case  of Panchdeo  Narain Srivastava  v. km. Jyoti Sahay
\nand another  [ 1984  (Supp.) SCC  594].\t In  that  case\t the
\nplaintiff  was\t held  entitled\t  to  amend  his  plaint  by
\nsubmitting that\t though earlier he stated that the defendant
\nwas uterine  brother, the  plaintiff  by  amendment  in\t his
\nplaint could  submit that  the defendant was his brother and
\nthe word  `uterine’ could  be dropped. Even in that case the
\nmain case  put forward\tby the plaintiff did not get changed
\nas the\tplaintiff wanted  submit that  the defendant was his
\nbrother. whether the was uterine brother or real brother was
\na question  of decree and depended on the nature of evidence
\nthat may be led before the Court. Therefore, the deletion of
\nword ‘uterine’\twas not\t found to  be displacing the earlier
\ncase of\t the plaintiff.\t On the\t facts of  the present\tcase
\nalso,  therefore,   the\t aid   decision\t cannot\t be  of\t any
\nassistance to the learned counsel for respondents.\n<\/p>\n
     In our  view, therefore,  on the facts of this case and
\nas  discussed\tearlier,  no   case  was  made\tout  by\t the
\nrespondents, contesting defendants, for amending the written
\nstatement and  thus attempting\tto go behind their admission
\nregarding 5  out of  7 remaining  items\t out  of  10  listed
\nproperties in  Schedule-A of  the plaint. However, so far as
\nSchedule-B properties  are concerned from the very inception
\nthe defendants’ case qua those properties was that plaintiff
\nhad no\tinterest therein.  By proposed amendment they wanted
\nto  introduce\tan  event   with  reference  to\t those\tvery
\nproperties by submitting that they had been in possession of
\ntrespassers. Such amendment could not be said to have in any
\nway adversely  or prejudicially\t affected the  case  of\t the
\nplaintiff or  displaced any  admission\ton  their  part\t qua
\nSchedule-B properties  which might  have resulted  into\t any
\nlegal right in favour of the plaintiff. Therefore, so far as
\nSchedule-B properties  were concerned,\tthe amendment  could
\nnot be\tfound fault  with. Hence exercising the powers under
\nArticle 136  of the  Constitution of  India we\twould not be
\ninclined to  interfere with that part of the decision of the
\nHigh Court tallowing the amendment in the written statement,
\neven though  strictly speaking\tHigh Court  could  not\thave
\ninterfered with\t even this  part of  the order under Section
\n115, CPC.\n<\/p>\n
     In the  result, this  appeal  is  partly  allowed.\t The
\nrespondents’ application  for amending the written statement
\nin so far as it sought to withdraw earlier admission about 5
\nproperties out of the remaining seven items of Schedule-A of
\nthe plaint shall stand dismissed. However, order regarding a
\npart of\t the application  for amending the written statement
\nqua Schedule-B\tproperties, which  was allowed\tby the\tHigh
\nCourt will remain untouched. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Heeralal vs Kalyan Mal & Ors on 19 November, 1997 Author: S Majmudar Bench: S.B. Majmudar, M Jagannadha Rao PETITIONER: HEERALAL Vs. RESPONDENT: KALYAN MAL & ORS. DATE OF JUDGMENT: 19\/11\/1997 BENCH: S.B. MAJMUDAR, M JAGANNADHA RAO ACT: HEADNOTE: JUDGMENT: THE 19TH DAY OF NOVEMBER, 1997 Present: Hon’ble Mr. Justice S.B. 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