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 Civil Revision No.5568 of 1999 (O&M) -4- 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 Civil Revision No.5568 of 1999 (O&M) -8- 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*