Civil Revision No. 3178 of 1992 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Civil Revision No. 3178 of 1992 Date of Decision : 16.10.2008 Rakesh Kumar ..........Petitioner Versus Bhag Singh & another. ......Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr.Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the petitioner. Mr. D.R. Mahajan, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure to challenge the order dated 11.9.1992 passed by the learned Addl. District Judge, Ludhiana dismissing an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure moved for amendment of the written statement. The respondent-plaintiff brought a suit against the petitioner and Hans Raj Joshi for decree for possession of the suit shop situated in Jagraon which was under possessory mortgage with petitioner-defendant, by way of registered mortgaged deed dated 9.2.1982. Civil Revision No. 3178 of 1992 -2- It was the case of the plaintiff-respondent that he was the owner of the suit shop, which was mortgaged with possession for a sum of Rs. 2000/- with petitioner-defendant, who was put in possession thereof. The respondent-plaintiff claimed that the petitioner was requested to accept the mortgage amount and redeem the mortgage and deliver vacant possession to respondent-plaintiff as his request was not accepted, the suit for possession was filed. The petitioner contested the suit, wherein he admitted that the plaintiff had mortgaged the disputed shop with possession with him by way of registered mortgage deed on 9.2.1982 for a sum of Rs. 2000/-. It was the case of the petitioner that the period of mortgage was fixed as one year and the disputed shop was redeemed by the plaintiff-respondent on 15.6.1983 after accepting the mortgaged money and the possession of the shop was handed back to the plaintiff-respondent. It was further pleaded that the mortgage deed was returned to the respondent-plaintiff, which was thereafter cancelled by puncturing of the mortgaged deed under the signature of the petitioner. The shop was thereafter leased out to Sh. Hans Raj father of the petitioner and at the time of filing of the written statement Sh. Hans Raj was tenant in possession of the suit shop. The petitioner denied that he was in possession of the suit shop. An application was moved under Order 1 Rule 10 C.P.C. to implead Hans Raj as co-defendant No.2. He also admitted that the suit property was mortgaged with possession with Rakesh Kumar for some time Civil Revision No. 3178 of 1992 -3- but he claimed that he was in possession of the suit shop since 1.7.1983 as a tenant on payment of Rs. 350/- per month as rent to the plaintiff-respondent. The possession of petitioner over t he shop was denied and it was claimed that it was Hans Raj defendant No.2, who was in possession as tenant. On the pleadings of the parties, issues were framed and the suit of the plaintiff respondent was decreed with costs. A decree for redemption of mortgage deed on payment of Rs. 2000/- by the plaintiff-respondent to the petitioner was passed. The petitioner preferred an appeal against the said judgment and decree wherein an application under Order 6 Rule 17 C.P.C. was moved to amend the written statement so as to take the following preliminary objections : “That the alleged mortgage is not a mortgage deed but is a lease deed. The provision of East Punjab Urban Rent Restriction Act are applicable to the premises in question. Commercial properties can not be got vacated easily from the tenants and the landlords have been devising the ways and means to bye pass the provisions of Rent Act. Thus, the mortgage in question was a sham transaction which had been created just to defy the provisions of the East Punjab Urban Rent Restriction Act. That the alleged mortgage deed is not a mortgage deed but is a lease deed as all the terms and conditions contained in the alleged mortgage deed are that of a lease deed. The interest and the lease amount was equal. Moreover the essential condition of the mortgage that the property has been transferred to the mortgage Civil Revision No. 3178 of 1992 -4- with the intention that in case the mortgage amount is not paid by the mortgager within or after the stipulated time then in that event, the mortgagee shall be entitled to release the mortgage amount by the sale of the mortgage property. This basic ingredient of mortgage is missing from the said mortgage deed. The value of the property even at the time of alleged mortgage deed was much higher and no person can mortgage the property for such a paltry sum.” It was claimed that the additional pleas sought to be raised could not be taken in the written statement in the trial Court for want of legal knowledge and expert advise. The petitioner claimed that he was entitled to amend the written statement as it was open to the petitioner to take contradictory and inconsistant pleas in the written statement. The contention raised by the learned counsel for the petitioner was rejected by the learned lower appellate Court by observing that by way of amendment petitioner is seeking to withdraw the admissions made in the written statement. The Court therefore held that the judgment of this Court in the case of Bank of India Vs. Jagat Singh HUF 1991(2) PLR 515 on which strong reliance was placed would not be applicable to the facts of the present case. The Court also observed that the proposed amendment was to cause material prejudice to the plaintiff-respondent which could not be compensated with costs and, therefore, held that the amendment sought could not be allowed. The Court also observed that the proposed amendment was not necessary for determining the real question in controversy between the parties as the petitioner has nowhere claimed that Civil Revision No. 3178 of 1992 -5- he was in possession of the property in dispute. It was also the finding of the learned Court that by seeking amendment the parties could not give up- their pleadings and set up altogether a new and different case. In support of this finding reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Vinod Kumar Arora Vs. Smt. Surjit Kaur AIR 1987 Supreme Court 2179 and in the case of Modi Spinning & Weaving Mills Co. Ltd. and another V. M/s Ladha Ram & Co. AIR 1977 Supreme Court 680; Haji Mohammad Ishaq Wd. S.K. Mohammed and others Vs. Mohammed Iqbal and Mohammed Ali and others AIR 178 Supreme Court 798 and Madan Lal 'Dhartipakar' Vs. Shri Neelam San jeeva Reddy and others AIR 1978 Supreme Court 802. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioners vehemently contended that the amendment sought was in fact legal in nature as the recital in mortgage deed clearly mentioned that the amount of interest payable would be equal to the rent of the shop and therefore the mortgage deed was in fact a rent note which was given the shape of mortgage deed. Mr.Arun Jain, Sr. learned senior counsel appearing on behalf of the petitioner also contended that a categoric stand in evidence was taken that a document though described a mortgage deed was in fact a rent deed. The contention of the learned senior counsel for the petitioner, therefore, was that the amendment sought was necessary for proper adjudication of the case. The learned senior counsel appearing on behalf of the petitioner in support of his contention relied upon the judgment of the Hon'ble Supreme Civil Revision No. 3178 of 1992 -6- Court in the case of Baldev Singh & Ors. Vs. Manohan Singh & Anr. 2006 (3) RCR (Civil) 844, wherein the Hon'ble Supreme Court has been pleased to lay down that the amendment in the pleadings can be allowed under the following circumtances :- “(1) Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. (2) Wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. (3) Court shall allow amendment of pleadings if it finds that delay in disposal of suit can be avoided and that the suit can be disposed of expeditiously. (4) Plea of limitation can be allowed to be raised by way of amendment in written statement. (5) Powers of the Court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. (6) Even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. (7) Be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff. (8) An amendment of a plaint. (9) Courts are inclined to be more liberal in allowing amendment of the written statement that of plaint and question of prejudice is less likely to operate with same Civil Revision No. 3178 of 1992 -7- rigour in the former than in the latter case. (10) Inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint.” The contention of the learned senior counsel, therefore, was that the Courts are to be more liberal in allowing amendment of the written statement than of the plaint as the question of prejudice is not likely to arise. It was also the contention that inconsistent pleas can be taken in the written statement. The learned senior counsel for the petitioner thereafter placed reliance on the judgment of the Hon'ble Supreme Court in the case of Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. 2007(1) Rent Control Reporter 457 wherein the Hon'ble Supreme Court was pleased to lay down that the amendment of the written statement was to be allowed more liberally as the defendant is entitled to take new defence and raise inconsistent pleas. Mr. D.R. Mahajan learned counsel appearing on behalf of the respondent supported the impugned order by making reference to the judgment of this Court in the case of Sarbjeet Kaur Vs. Jangir Singh 2002 (4) R.C.R.(Civil) 181 wherein it has been laid down that contradictory plea completely destructive to the original one cannot be allowed to be taken as it is likely to cause prejudice to the other party and would completely destabilise the proceedings and a de novo trial would start. The prejudice so caused cannot be compensated with costs. The learned counsel for the respondent also placed reliance on Civil Revision No. 3178 of 1992 -8- the judgment of this Court in the case of Balwant Singh Vs. Om Parkash and another 2002(4) R.C.R. (Civil) 803 to contend that if the pleadings are not controverted by the defendant in the original written statement he cannot be lateron allowed to amend the written statement to plead adverse claim. This Court has further been pleased to lay down that an admission crystalised into a right to other party cannot be allowed to be withdrawn. The reliance was also placed on the judgment of this Court in the case of Bahadur Singh and another Vs. Avtar Singh 2007(3) R.C.R. (Civil) 44 wherein this Court was pleased to lay down that if the fact and ground sought to be added by way of amendment at belated stage was actually within the knowledge of the party at the initial stage of commencement of trial or could be found with due diligence, the same cannot be allowed by way of amendment at a belated stage. Learned counsel for the respondent finally placed reliance on the judgment of this Court in the case of Jaswinder Kumar Vs. Smt. Simla Bai & Ors. 2007(3) RCR (Civil) 684, wherein this Court has been pleased to lay down that amendment at appellate stage to plead a Will contrary to the original pleadings and case set up in the earlier litigation cannot be said to be bona fide. This court was pleased to lay down that the Court while allowing the amendment is to see that it is bona fide and necessary for just and proper adjudication of the case. In case the answer is in negative, application has to be rejected. On consideration of the matter, I find no force in the contention raised by the learned senior counsel for the petitioner. In the present case Civil Revision No. 3178 of 1992 -9- the petitioner had categorically admitted the factum of mortgage deed rather stand taken was that the mortgage deed stood redeemed and it was his father i.e. defendant No.2 who was in possession of the property as a tenant. The similar stand was also taken by the father of the petitioner on being implead as a party. The amendment sought now is to withdraw the categoric admission made by the petitioner in the written statement which had in fact resulted in passing of the decree in favour of the respondent-plaintiff. The Hon'ble Supreme Court in the case of Baldev Singh & Ors. Vs. Manohan Singh & Anr. (supra) while laying down that inconsistent plea may be allowed in the written statement, observed that the amendment which is likely to cause prejudice to other party could not be allowed. Similarly, in the case of Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. (supra) also the Hon'ble Supreme Court was pleased to lay down that though the Court should be liberal in granting prayer of amendment of the pleadings but the same cannot be allowed in case the injustice or irreparable loss is likely to be caused to the other side and if the amendment is not held to be bona fide. As already observed above, in the present case the plaintiff- respondent succeeded in obtaining the decree and therefore this is not a stage where the petitioner could be allowed to withdraw his admission. The Hon'ble Supreme Court in the case of Gautam Sarup Vs. Leela Jetly 2008(3) Law Herald (P&H) 2141 (SC) has been pleased to lay Civil Revision No. 3178 of 1992 -10- down that the defendant cannot be permitted to explain a categoric admission and cannot be allowed to resile. The Court held that offering explanation in regard to an admission or explaining away the same depends upon the nature and character thereof. Such alternative pleas, however, cannot be mutually destructive of each other. In the present case, the petitioner is seeking to amendment his written statement at the appellate stage to take a totally contradictory and destructive plea to the one raised in the written statement. The learned lower appellate Court was, therefore, right in rejecting the application for amendment of the written statement moved by the petitioner defendant. No ground for interference in the impugned order is made out by this Court. Dismissed. 16.10.2008 ( VINOD K. SHARMA ) 'sp' JUDGE