IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 484 of 2009. Reserved on: 16.8.2010 Date of decision: 23.8.2010 Bishnu and others …. Petitioners Versus Laxman and others. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? Yes For the petitioners: Mr.Ajay Sharma, Advocate. For the respondents: Mr.Vikas Bhardwaj, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) By means of this petition, the petitioner has challenged the order dated 10.7.2009 passed by the learned Additional District Judge (I) Kangra at Dharamshala whereby the application filed by the petitioners (hereinafter referred to as the ‘defendants’) for the amendment of the written statement was rejected. 2. The brief facts of the case are that the respondents-plaintiffs filed a suit for possession of the suit land in which it was averred that the plaintiffs are 2 co-sharers in possession of the suit land and the defendants have no right, title or interest in the suit land. According to the plaintiffs, they were dispossessed by the defendants on 15.1.2002. The defendants resisted the suit and filed a written statement in which the main plea raised was that the suit land has been coming in their continuous hostile possession for the last 35 years and they claimed to have become owners of the suit land by way of adverse possession. 3. A perusal of the judgment of the learned Trial Court shows that in fact, this was the main contention raised before it. The suit of the plaintiffs was decreed since it was found that the defendants had failed to prove their adverse possession on the suit land. It would also be pertinent to mention here that this suit was instituted on 29.10.2002 and was decided in the year 2003. Thereafter, an appeal was filed in the Court of the learned District Judge on 30.4.2003. Two years later on 3.12.2005, an application under Order VI Rule 17, CPC was filed. By way of this application, the defendants sought to amend the written statement and raised a plea that in fact, the suit land belonged to 3 their ancestors and they, i.e., the defendants are co- owners of the possession of the suit land since the year 1944-45. Not only was the written statement sought to be amended but a counter claim was also sought to be pleaded alongwith the written statement. By way of the counter claim, it was prayed that the plaintiffs be restrained from claiming ownership and possession to the exclusion of the defendants and be also restrained from interfering in the possession of the defendants till the partition of the joint property. This application was rejected by the learned Lower Appellate Court. 4. I have heard Sh.Ajay Sharma, learned counsel for the petitioners and Sh.Vikas Bhardwaj, learned counsel for the respondents. 5. Admittedly, in the original written statement, the defendants did not claim ownership over the suit land as a matter of right and they claimed that they had become owners of the same by way of adverse possession. Now, they claim that they were co-owners of the property from the beginning. These two pleas are not only inconsistent but are mutually destructive of each other and cannot co-exist. A co-owner can never claim to be in an adverse possession of the land. 4 6. The explanation given by the defendants for not taking this plea before the learned Trial Court is that they had engaged a leading counsel. In the application filed for amendment of the written statement, all that is stated is that in spite of due diligence, the amendment/addition could not be sought court below before the commencement of the trial. 7. Sh.Ajay Sharma, in support of his contention has placed reliance on the judgment of the Apex Court in Kulwant Kaur and others Vs. Gurdial Singh Mann and ors. 2001 (4) SCC 262 and submits that the approach of the Court should be justice oriented and relief should not be denied on the ground of technicality. He has also placed reliance on the judgment of the Apex Court in Peethani Suryanarayana and anr. Vs. Repaka Venkata Ramana Kishore, 2009 (11) SCC 308 wherein it was held that the Court has the power to allow the amendment provided (i) the application is bona fide, (ii) does not cause injustice to the other side and (iii) does not affect the rights already accrued to the other side. In para 10, the Court observed as under:- 5 “The power of the court to allow such an application for amendment of the plaint is neither in doubt nor in dispute. Such a wide power on the part of the Court is circumscribed by two factors viz. (i) the application must be bona fide; (ii) the same should not cause injustice to the other side; and (iii) it should not affect the right already accrued to the defendants.” 8. He has also relied upon the judgment of the Supreme Court in Sushil Kumar Jain Vs. Manoj Kumar and another, 2009 (14) SCC 38. In my opinion, this judgment is not applicable to the facts of the present case. 9. On the other hand, Sh.Vikas Bhardwaj, learned counsel for the respondents submits that in the original plaint, there was no allegation that the petitioners- defendants were co-owners of the suit property. He also submits that the pleas are mutually destructive. He has placed reliance on the judgment of the Supreme Court in Vimal Chand Ghevarchand Jain & ors. Vs. Ramakant Eknath Jadoo, 2009 (5) SCC 713 wherein the Apex Court held as follows:- “Pleadings of the parties, it is trite, are required to be read as a whole. The defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to 6 raise pleas which are mutually destructive of each other.” 10. Reliance has also been placed by him on the judgment of the Apex Court in Gautam Sarup Vs. Leela Jetly and ors. 2008 (7) SCC 85 wherein the Apex Court held that a party cannot be permitted to retract the admission made by it. The Court held as follows:- “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.” 11. In Prithvi Raj and anr. Vs. Gopal and ors. Latest HLJ 2005 (HP) 869, this Court while interpreting the order VI Rule 17, as amended by the CPC (Amendment) Act, 2002 held as follows:- “4. Proviso to Order 6 Rule 17 CPC was introduced for the first time by way of the CPC (Amendment) Act, 2002. Prior to the said amendment, there was no proviso to Order 6 Rule 17, CPC. By introduction of the proviso the power of the Court to permit amendments in the 7 pleadings after the trial has commenced has now been circumscribed and limited only to such situations where the Court comes to a conclusion that inspite of due diligence the party asking for the amendment could not have raised the matter before the commencement of the trial.” 12. It is also urged by Sh.Bhardwaj that the defendants are not only seeking to amend the written statement but also seeks to file a counter claim. The counter claim must be filed by the party alongwith the written statement. He has placed reliance on the judgment of the Apex Court in Ramesh Chand Ardawatiya Vs. Anil Panjwani, 2003 (7) SCC 350 wherein it held as follows:- “28. Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already 8 filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by 9 way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter- claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of `subsequent pleading' as there is no `previous pleading' on record. In the present case, the defendant having failed to file any written statement and also having forfeited his right of filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claim may not prejudice the defendant because in spite of 10 the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter- claim.” 13. Order VI Rule 17 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.” 14. A bare perusal of this provision and the authorities cited above shows that it is for the party seeking amendment to satisfy the Court that in spite exercise of due diligence, it could not plead the facts before commencement of the trial. In this regard, there are virtually no averments in the application. The application is highly belated and the facts which are now pleaded were available to the defendants at the time when the original written statement was filed. The only plea, as noted above, is that a senior counsel had 11 been engaged. A counsel can draft the pleading only on the facts given to him by the parties. The counsel cannot state facts which have not been told to him. At the stage when the original written statement was filed, the only plea taken was of adverse possession. At this stage, the petitioners cannot be permitted to take up a totally contradictory and inconsistent plea of being co- owners in possession of the suit property. They also cannot be permitted to file a counter claim at this stage. 15. In view of the above discussion, I find no merit in the petition which is accordingly rejected. August 23, 2010 ( Deepak Gupta ) (m) Judge 12