IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 202 of 2007 Date of Decision: 26.5.2008 ________________________________________________________________ Sh.Devi Dass … Petitioner Versus Sh.Devi Singh and others … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. Satyen Vaidya, Advocate. For the Respondents : Mr. B.S. Chauhan, Advocate. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition is directed against the order of the learned District Judge, Kullu dated 6.8.2007 whereby he has rejected the prayer made by the petitioner (hereinafter referred to as the defendant) for amendment of the written statement. Briefly stated, the facts of the case are that the respondents (hereinafter referred to as the plaintiffs) filed a suit for declaration to the effect that they are owners in possession of 2-3-0 bighas of land being ½ share of the land comprised in khasra Nos.67, 76, 96, 97, khata kahtauni No.108/148 village Goshal, Tehsil Lahaul. According to the plaintiffs they inherited the suit land from their father Sh.Rup Dass. The defendants are the real brothers of Rup Dass. In 2 the suit it was also claimed that the defendents had illegally got themselves recorded as owners in the revenue record. Consequently relief of injunction was also prayed for restraining the defendants from causing any sort of unlawful interference in the ownership and possession of the plaintiffs and from alienating or encumbering the same and in the alternative it is was prayed that if the plaintiffs are not found in possession of the suit land then a decree for possession of the suit land be passed in their favour. This suit was contested by the defendants. Defendants in para 2 of the written statement admitted the fact that Sh.Rup Dass was previously owner of the suit land and took up the plea that they had become owners in possession by way of adverse possession. Relevant portion of para 2 of the written statement read as follows: “2.In reply to this para it is submitted that Sh.Rup Dass was previously owner of the suit land who left his native place during his life time and remained as Ghar Jawain at village Kirting quite far away from the place where the suit land is situated and the plaintiffs were also born at village Kitring lived there alongwith their parents and then after the death of said Sh.Rup Dass the plaintiffs started residing at village Dobha Angantai in Distt.Kullu. The defendants being the brother of said Sh.Rup Dass has been cultivating the suit land qua the share of Rup Dass, recorded in the revenue record and the defendants during the life time of the said Sh.Rup Dass after his marriage in the year 1952 and when he left the native place as submitted above, have been 3 possessing the suit land as an absolute owner continuously, openly, peacefully to the notice and knowledge of the said Sh.Rup Dass and public at large without any interruption, let or hindrance for the last more than twelve years as such the defendants have become the absolute owner in possession of the suit land qua the share of said Sh.Rup Dass, for which the defendants reserve their right to seek the declaration in the Hon’ble Court……” This suit was contested and after recording the evidence and hearing the arguments, the learned Civil Judge, Senior Division decreed the suit in favour of the plaintiffs. He held that the plaintiffs were the owners of the suit land but did not find them in possession. He rejected the claim of the defendants that they had become owners by way of adverse possession. He decreed the suit of the plaintiffs and held them entitled to recover possession from the defendants. The defendants filed an appeal and also filed an application for amendment of the written statement before the appellate Court. Basically two amendments were sought for by way of this application for amendment. Firstly that the land in question had been inherited by Rup Dass from his father and the defendants being his real brothers had also a right to inherit the same in equal shares from Rup Dass. Another contention raised was that since Rup Dass had left his native place during his life time and remained as Ghar Jawain in 4 the villae of his in-laws, he in accordance with the custom of the area had ceased to have any right, title or interest in the suit land. The learned District Judge has rejected this application on two grounds. Firstly that this application is hit by the proviso to Order 6 rule 17 CPC and defendants had failed to show that this application has been made despite exercise of diligence. On merits also the learned District Judge found that by means of the amendment the defendants wants to withdraw certain admission which they cannot be permitted to do so and therefore rejected the application. I shall first take up the question as to whether the proviso of Order 6 Rule 17 as introduced by the Code of Civil procedure (Amendment) Act, 2002 is applicable to the present case or not. Order 6 rule 17 as amended reads as follows: “17.Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 5 There is no change by the amendment to the main provision of the Rule. However, by means of amendment brought in by the Amendment Act of 2002, a proviso has been incorporated which provides that no Court shall allow an amendment unless it comes to the conclusion that despite due diligence a party could not have raised the matter before commencement of trial. Admittedly, this proviso was incorporated w.e.f. 1.7.2002. In the present case the suit was filed before the said date. This question is no longer res integra. The Apex Court in State Bank of Hyderabad vs. Town Municipal Council, (2007) 1 SCC 765 has clearly held that the amended provisions of Order 6 rule 17 CPC will not apply to those cases where the pleadings were filed before 1.7.2002. The order of learned District Judge in so far as it holds that the application is hit by the proviso is not legally correct. However, on merits I do not find any error in the order of the learned District Judge. True it is, that the Supreme Court time and again has laid down that the approach of the Courts while considering the applications for amendments of the pleadings, especially amendment of the written statements, should be liberal. The Supreme Court has repeatedly held that the amendments of pleadings should 6 be allowed unless serious injustice or an irreparable loss is caused to the other side or on the ground that prayer for amendment is not a bonafide one. It is also the settled law that by way of amendment a party cannot be permitted to withdraw its admission. It may be permitted to explain the admission or circumstances in which the admission has been made, but in my considered opinion it cannot be permitted to take a U turn and withdraw the admission itself. In the present case, the plaintiffs had clearly prayed for declaration in respect of half share of the land measuring 4-6 bighas. They had sought their right in respect of 2-3 bighas. The other half share was not owned by the defendants but by some 3rd party. The defendants while filing the written statement specifically made an admission that the suit land was previously owned by Rup Dass father of the plaintiffs but the defendants were in possession of the same and pleaded hostile possession and claimed that they had become owners of the suit land by way of adverse possession. Shri Satyen Vaidya, learned counsel for the petitioner has drawn my attention to that portion of the unamended written statement wherein the defendants had stated that they have become absolute owners in possession of the suit land qua the share of said Rup Dass. It is submitted by him 7 that it is only in respect of the share of Rup Dass that this prayer was made and not in respect of the share of the defendants. This argument is without any merit. The suit was in respect of a particular half share comprised in certain khasra numbers. The words “share of said Sh.Rup Dass” have to be read in the context of the plaint and the written statement. It is clear that the share being referred to was the share of Rup Dass in 4-6 bighas of land. It would also be pertinent to mention that in the original written statement there is not even a whisper that the suit land was ancestral property or that the plaintiffs had any direct right in the suit land. They claimed their right only on the basis of hostile possession and the case set up by them was that since Rup Dass had left the area to settle in the village of his in-laws it was his brothers who were cultivating the suit land and had become owners by way of adverse possession. In my view, this was a clear-cut admission which could not be permitted to be withdrawn. The Apex Court in Rajesh Kumar Aggarwal and others vs. K.K. Mod and others, (2006) 4 SCC 385, has held that the Court must allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The Apex Court held that real 8 controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. In case Baldev Singh and others vs. Manohar Singh and another, (2006) 6 SCC 498 the apex Court held that a defendant can be permitted to add a new ground of defence or substitute or alter a defence and in that sense the scope of amendment of written statement is much wider than that of amending a plaint. The Apex court also held that the Courts should be more liberal while allowing the amendment of a written statement. However, despite holding so the Apex court with regard to admissions, held as follows: “That apart, in the case of Estralla Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC 97], this Court held that 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.” It is clear that the Apex Court did not permit withdrawal of the admission but only permitted the defendant to explain the admission by way of amendment. The law with regard to the amendment has been crystallized in the latest judgment of the Apex court in Usha Balashaheb Swami and others vs. Kiran Appaso Swami and 9 others, (2007) 5 SCC 602, wherein the apex Court held as follows: “17. From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the 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. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced. 18. It is now well-settled by various decisions of this Court as well as those by High Courts that the 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 bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C. 249] may be taken note of. The Privy Council observed: "All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit." (Underlining is ours) 19. It is equally well settled principle that 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 cause of action in the plaint may be objectionable. 20………… 21………… 22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and 10 addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.” The Apex Court further held that a defendant by amending the written statement is entitled to take new defence and also to plead an inconsistent stand. However, it went on to hold that by making the application for amendment of written statement the admission could not be withdrawn though it may be explained. In the facts of the said case the Apex court held that it was not a case of either withdrawal of admission or washing out the admission. In the present case, as discussed above, I am of the considered view that the defendants had made specific admission that Rup Dass was the previous owner of half share of land comprised in khasra Nos.67,76,96,97 and had claimed that they had become owners by adverse possession in respect of the half share of Rup Dass. This was a clear admission which could not be permitted to be withdrawn. By way of amendment it is not that the admission is being explained but the defendants are taking a diametrically opposite stand in as much as earlier they had only claimed to have become owners by way of adverse possession but now they claims 2/3rd shares in the half share. In my view they cannot be permitted to do this. 11 In view of the above discussion, I find no merit in the petition which is dismissed with no order as to costs. May 26, 2008. ( Deepak Gupta ),J. PV