HIGH COURT OF ORISSA: CUTTACK. O.J.C. No.5637 of 2002 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------- Jhulla Sahoo (dead) his legal heirs Sabitri Sahoo and others …… Petitioners -Versus- Minatibala Behera and others …… Opp. Parties For Petitioners : M/s. P.K. Rath, R.C. Jena, P.K. Satpathy, R.N. Parija and A.K. Rout For Opp. Parties : M/s. A. Mohanty, J.P. Patra, S.P. Nayak, M.K.Rout, H.K. Tripathy,J. Sahu and J.K. Samantaray (for O.P. no.4) M/s M.M.Basu,D.Dey, (for O.Ps. 1,2 & 3) PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 6.10.2010: Date of judgment – 02.11.2010 B.K. PATEL, J. In this writ petition, petitioners have assailed the legality of order dated18.4.2002 passed by Additional District Judge, Fast Track Court No.2, Bhubaneswar in Civil Revision Nos.26 of 2001 (12 of 2002) by which order dated 9.7.2001 passed by learned Civil Judge (Senior Division), Bhubaneswar in O.S. No.190 of 1984-I rejecting petitioner’s application under Order 6 Rule 17 read with 151 of the C.P.C. for amendment of written statement was confirmed. 2. Petitioners are legal heirs of defendant no.1 whereas opposite party nos.1 to 3 are legal heirs of the plaintiff and opposite party no.4 is the defendant no.2 in the suit. Government of Orissa in the General Administration Department has been impleaded as defendant no.3. 3. Defendant no.1 being the lessee of the Government in respect of the suit land entered into registered agreement for sale dated 6.1.1973 with the plaintiff for a consideration of Rs.4,800/-. As per the agreement defendant no.1 received advance of Rs.2,900/-, handed over possession of the suit land to the plaintiff and undertook to execute registered sale deed within one year after obtaining requisite permission from the State Government and on receipt of the balance consideration amount. It is also not disputed that defendant no.1 has executed registered tripartite 2 document dated 20.8.1984 with defendant nos.2 and 3 to lease out the suit land in favour of defendant no.2. 4. Plaintiff has filed the suit for specific performance of contract dated 1.6.1973 by directing execution of registered sale deed, for declaration that the tripartite lease deed executed by the defendants is void and for permanent injunction restraining the defendants from interfering with peaceful possession over the suit land. It is asserted that tripartite lease deed executed by the defendants is a sham document which does not convey any right, title or interest in favour of defendant no.2. In his written statement stand of defendant no.1 is that taking benefit of his simplicity and illiteracy the plaintiff did not incorporate in the agreement dated 61.1973 specific stipulation made by defendant no.1 to the effect that in case balance consideration amount was not paid within six months, the agreement would be invalid and advance consideration amount paid by the plaintiff would be forfeited. As plaintiff did not pay the balance amount within the stipulated time, the agreement became ineffective. Thereafter, defendant no.1 being in need of money transferred the suit land in favour of defendant no.2 on the strength of tripartite agreement entered into among the defendants. 3 Defendant no.2 filed written statement supporting the stand of the defendant no.1 making counter claim for a decree to deliver possession of suit land to him. 5. It is pertinent to note that the suit culminated in pronouncement of judgment and decree dated 30.7.1994 and 18.8.1994 and defendant no.2 as well as plaintiff preferred appeals against the said judgment and decree before the learned District Judge, Khurda at Bhubaneswar in T.A. No.1/44 of 1997/94 and 2/48 of 1997/94 respectively. In the common judgment passed on 17.5.1997 learned District Judge, Khurda observed that in the suit material issues, such as whether the plaintiff since the date of contract was continuously ready and willing to perform his part of the contract; whether the defendant no. 2 was a bona fide purchaser for value without notice; whether the defendant no. 2 was dispossessed by the plaintiff while in possession over the suit land; whether the suit was barred by limitation; and whether defendant no. 2 is entitled to the relief of recovery of possession as per his counter-claim were omitted to be framed. No finding was recorded and no evidence was adduced on these issues. Both the appeals were allowed and the suit was remanded for retrial “after framing additional issues strictly on the pleadings of the parties and for considering the counter 4 claim filed by defendant no.2”. When the suit was pending for fresh disposal after remand defendant no.1 filed application for amendment under Order 6 Rule 17 read with 151 of the C.P.C. Plaintiff did not file objection against the amendment petition. However, defendant no.2 filed objection. 6. Material amendments sought to his written statement by defendant no.1 are as follows: (i) Paragraph 7 of the written statement reads: “That the allegations of para 3 of the plaint are not wholly correct. As has been stated earlier the plaintiff persuaded this defendant to dispose of the suit property to him, and as per his instruction the prices was settled at Rs.4,800/- and he paid an advance of Rs.2,900/- and the terms and conditions of the agreement were neither read over nor explained to this defendant, with the connivance of his scribe he wrote the agreement in which this defendant has only signed without reading the contents. It was settled between the plaintiff and this defendant that he will arrange to obtain permission from P & S Department for transfer and if he will not pay the entire balance consideration money within 6 months the agreement will be ineffective and the amount advanced will be forfeited and this defendant will be at liberty to dispose of the land to anybody he likes. Though this defendant was insisting for one month the plaintiff persuaded him to grant him 6 months time as it will take some time to get the permission from P &n S Department as it was a Government lease hold land. In good faith this defendant has not only signed the agreement but also given his signature, in 6 to 7 blank papers as per the instruction of the plaintiff as it would be necessary for getting permission from the P & S Department. It is mischievously false to say that time was not the essence of the contract, but the transfer of the suit 5 plot. On the other hand time was the essence of the contract and it was agreed as has been stated earlier if within 6 months he will not pay the money the contract will be cancelled and the agreement will be invalid and the money advanced will be forfeited.” Defendant no.1 seeks to delete and substitute the underlined portion by the words “the alleged agreement was written”. (ii) Paragraph 16 of the written statement reads: “That the allegations of para 13 of the plaint are not correct. The tripartite lease deed executed by the defendant no.1 in favour of defendant no.2 is genuine, legal and valid. As the lesser the Government is a party to the deed the defendant no.2 has acquired valid title over the suit property. That this defendant has given possession of the suit property to the defendant no.2 on the date of execution of tripartite lease deed. It is not correct that in furtherance of the agreement dt.6.1.73 the plaintiff is in possession of the suit property. The suit property has not been undervalued and the plaintiff has no right to challenge the same when both the lesser and the lessee agree regarding valuation. That the documents executed by this defendant in favour of defendant no.2 is legal, valid and binding in the eye of law.” Defendant no.1 seeks to delete the entire paragraph and substitute the same by the following: “That the facts stated in para-13 of the plaint are not correct. The defendant no.1 has never made any tripartite lease deed in favour of defendant no.1. It is true that no possession has been ever delivered to defendant no.2 and plaintiff also never in possession over the disputed land in furtherance to the alleged agreement dt.1.6.73. The defendant no.1 is all along in possession over the disputed land.” 6 (iii) Paragraph 17 of the written statement reads: “That the allegations of para 14 of the plaint are totally false and baseless. The plaintiff has never performed his part of the contract and as per the agreement as he did not fulfill his part of the contract in time so he forfeited his right to enforce the contract after lapse of 13 years of execution of the agreement. The plaintiff will not suffer any loss if the contract is not fulfilled. As the plaintiff did not fulfill his part of the contract it has long since being lost its effect as per law and this defendant correctly with the permission of the lesser alienated the same in favour of defendant no.2. Defendant no.1 seeks to delete the underlined portion. And (iv) Paragraph 19 of the written statement reads: “That the real fact of the case is that the suit property is a Govt. lease hold property and this defendant was a lessee and the suit plot was leased out to this defendant in the year 1970 by way of a registered lease deed. This defendant was in peaceful possession of the same and he had approved the plan for making construction but due to paucity of funds he could not proceed with the construction and in the meantime the plaintiff persuaded this defendant to transfer the land in his favour and accordingly the price was fixed at Rs.4,800/- and it was settled between the parties that he will pay Rs.2,900/- immediately and the balance he will pay within 6 months failing which the agreement will be invalid and the advance given by him will be forfeited and this defendant will be at liberty to transfer the same to whom so-ever he likes. That the plaintiff is a clever and Mamaltaker man. The defendant is anilliterate man and he knows only how to give his signature. Taking advantage of this the defendant scribed the agreement by his Mohariar, the contents of the agreement were not read over and explained to this defendant and on good faith as per the instruction of the plaintiff this defendant signed on the agreement at places where the plaintiff indicated. The plaintiff also took the signature of this 7 defendant in 6 & 7 blank papers saying that it will be required for obtaining permission from the P & S Deptt. And on good faith this defendant gave the signature. After some days of execution of this agreement the plaintiff came to this defendant and persuaded him to hand over the original lease deed and the approved plan, so that he will show it in the P & S Department and obtain permission. So this defendant gave those documents to him. This defendant was always insisting the plaintiff for transfer of the land but with some plea or other he was delaying the matter. It was decided at the time of agreement that the plaintiff will arrange the permission of transfer from the P & S Deptt. Though this defendant was always ready to perform his part of the contract but the plaintiff with some ulterior motive did not turn up. So as per the agreement after expiry of 6 months from the date of execution of the agreement became ineffective and the plaintiff forfeited the advanced money which he handed over to this defendant. This defendant was all along in possession of the suit property and he made construction gradually, and while in possession he was urgent need of money so he wanted to sale this property to defendant no.2 for Rs.15,000/-. As it is a lease hold land the defendant no.2 got the permission of transfer and after the permission for transfer was obtained the tripartite lease deed was executed on 1.8.84 and this defendant received the entire consideration of Rs.15,000/- and gave delivery of the possession of the suit property to the defendant no.2 and since then the defendant no.2 is in possession of the same. That the tripartite lease deed by this defendant in favour of defendant no.2 and the Government is legal valid and the defendant no.2 has acquired title. So under the above circumstances, the plaintiff suit should be dismissed with cost.” Defendant no.1 seeks to delete the entire pleadings regarding real fact of the case and substitute the same by following: “The defendant no.2 is the adjacent owner of the defendant no.1’s plot who has good relation with defendant no.1. As disputed was going on between 8 plaintiff and defendant no.1, the defendant no.2 disguise him as a well wisher of defendant no.1 asked the defendant no.1 that he will settle every thing. After some days he came to defendant no.1 and asked him to came to the Sub-Registrar Office to make a cancellation deed so that the alleged agreement made in favour of plaintiff will be cancelled. The defendant no.1 in good faith came to Sub- Registrar Officve on 20.8.1984 with defendant no.2 where the defendant no.2 asked the defendant no.1 to sign on stamp papers written in English. The defendant no.1 is an illiterate person do not know English. Only on good faith on defendant no.2 he signed on those stamp papers. Recently he came to know that actually defendant no.2 by making fraud on him taken his signature on tripartite lease deed and claiming the disputed land. Sign upon that deed. The defendant no.1 has never made any lease deed in favour of defendant no.2 and never delivered possession to him. The alleged lease deed written in English never read over and explained to him in Oriya and no consideration has ever given to him by defendant no.2. Neither the plaintiff nor the defendant no.2 is in possession over the disputed land. The defendant no.1 is all along in possession over the disputed land. So under the above circumstances, the plaintiff is not entitled to the relief of specific performance and the suit is liable to be dismissed with cost.” 7. It was not disputed at the Bar, and in fact it was conceded by the learned counsel for the petitioners, that amendment to his pleadings in the written statement sought by the defendant no.1 has the effect of totally wiping out categorical and unambiguous admissions made in favour of defendant no.2. 9 8. It was strenuously argued by the learned counsel for the petitioners that in his application for amendment the petitioners have explicitly pleaded that defendant no.1 entrusted defendant no.2 with the task of engaging a lawyer on his behalf and instructed him to assail the genuineness of the tripartite agreement in his written statement. However, taking undue advantage of defendant no.1’s innocence and illiteracy defendant no.2 got the written statement drafted and signed by defendant no.1 to serve his own interest by practicing fraud. Therefore, even though amendments in the written statement would displace admissions made in favour of defendant no.2, the learned courts below ought to have allowed the application in the interest of justice and for effective adjudication of the dispute among the parties. Placing reliance upon a number of decisions of the Hon’ble Apex Court and this High Court it was argued that there is no legal bar against withdrawal of admissions by way of amendment of pleadings as it is well settled that amendment to pleadings should be liberally allowed, and more so in case of amendment to pleadings in written statement since procedural obstacles ought not to impede dispensation of justice. 9. In reply, learned counsel appearing for the opposite party no.4 strenuously contended that in his written statement defendant no.1 10 has admitted regarding voluntary execution of tripartite agreement to transfer the suit land in favour of defendant no.2. By way of amendment at a belated stage, that too after the matter was remanded for fresh disposal by the Appellate Court, defendant no.1 seeks amendment of written statement on the ground of fraud without pleading particulars thereof. New pleadings seek to substitute candid admissions by blatant denial. Pleadings in the written statement and proposed amendments are mutually destructive and inconsistent. None of the decisions relied upon by the learned counsel for the petitioners supports the proposition that admission made in the pleadings can be allowed to be completely withdrawn in exercise of power under Order 6 Rule 17 of the C.P.C. Placing reliance on a number of decisions of the Hon’ble Supreme Court and this Court it was argued that the learned courts below rightly rejected the application for amendment. 10. It is obvious that defendant no.1 does not deny to have filed the written statement. Counter claim made by defendant no.2 gets support from the admissions made by the defendant no.1 in the written statement. Suit was filed in the year 1984. Amendment petition withdrawing admissions made in the written statement has been filed in the year 2001 by defendant no.1 not only after full length trial culminating 11 in passing of judgment and decree in the year 1984 but also after the matter was remanded in the year 1997 for fresh trial by the first appellate court. 11. It is evident that by way of amendment defendant no.1 is seeking to displace defendant no.2 completely from the admissions made in his favour in his written statement. 12. It has been held by a Bench of three Judges of the Hon’ble Supreme Court in M/s. Modi Spinning & Weaving Mills Co. Ltd. and another –vrs.- M/s. Ladha Ram & Co.: (1976) 4 SCC 320: “10. 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.” 13. In Shrimoni Gurdwara Committee –vrs.- Jaswant Singh : (1996) 11 SCC 690, it has been held: “It is settled law that the defendant can raise mutually inconsistent pleadings in the written statement but it is for the court to consider whether the case can be properly considered in deciding the issue. But in this case the plea in the written statement is mutually destructive. In the first written statement, they have denied the title of himself. Therefore, they cannot set up a title in him and plead gift made by in favour of the 12 petitioner-Committee. Under these circumstances, the High Court has rightly refused to grant the plaint. Moreover, there is no explanation given as to why they came forward with this plea at the belated stage after the parties had adduced the evidence and the matter was to be argued. Under these circumstances, there is no error of jurisdiction or material irregularity in the exercise of jurisdiction warranting inereference.” 14. In Heeralal –vrs.-Kalyan Mal and others: AIR 1998 SC 618, it has been held that decision of the Bench of three Judges in M/s. Modi Spinning & Weaving Mills Co. Ltd. and another –vrs.- M/s. Ladha Ram & Co. (supra) is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn is such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. While granting amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff’s case and cause him irretrievable prejudice. 15. In Gautam Sarup –vrs.- Leela Jetly and others: (2008) 7 SCC 85, it has been pointed out that “an admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore”. Upon 13 reference to a number of decisions it was further held in Gautam Sarup –vrs.- Leela Jetly and others (supra): “What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” 16. In Revajeetu Builders and Developers –vrs.- Narayanaswamy and Sons and others: (2009) 10 SCC 84, it was observed as follows: “21. The respondents relied on the decision of this Court in Usha Balashaheb Swami v. Kiran Appaso Swami wherein the Court has held that by way of amendment, admission made in pleadings and particularly in the plaint cannot be sought to be omitted or got rid of. The Court further observed that a prayer for amendment of the plaint stands on a different footing. The relevant observations of the Court are set out as under : “19……..a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new 14 cause of action in the plaint may be onjectionable. 20. Such being the settled law, we must hold that 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.” 22. The learned counsel for the respondents further relied on the decision in Heeralal v. Kalyan Mal wherein the Court proceeded on the basis that the earlier admissions of the defendant cannot be allowed to be withdrawn. The Court examined the facts and held that the defendant cannot be permitted to withdraw any admission already made. 23. The respondents have also relied on the decision in Gautam Sarup v. Leela Jetly. In the said case, it was held that by amendment the admission in the original pleadings cannot be sought to be got rid of. 24. In Modi Spg. & Wvg. Mills Co. Ltd v. Ladha Ram & Co. the trial court while rejecting an application under Order Rule 17 said that the repudiation of clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law. The High Court in revision affirmed the judgment of the trial court and held that by means of amendment the defendant wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.” At paragraph 41 of the decision it was pointed out: “….The test as to whether the amendment should be allowed, is whether or not the defendants can amend without placing the plaintiff in such a position that he cannot be recouped, as it were, by any allowance of costs, or otherwise.” 17. In another decision of the Hon’ble Supreme Court in Vimal Chand Ghevarchand Jain & Ors. –vrs.- Ramakant Eknath Jajoo: 2009(3) Supreme 460 the principle has been reiterated. It has been held: 15 “…… Pleadings of the parties, it is trite, are required