1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2772 OF 2009 1) Dattatraya s/o Balbhim Chavan, Age-30 years, Occu:Service and Agriculture, R/o-Dattanagar, Naugan College Road, Tq-Beed, Dist-Beed. 2) Digambar s/o Balbhim Chavan, Age-30 years, Occu:Advocate and Agriculture, R/o-Dattanagar, Naugan College Road, Tq-Beed, Dist-Beed. 3) Deepak s/o Balbhim Chavan, Age-27 years, Occu:Service R/o-Dattanagar, Naugan College Road, Tq-Beed, Dist-Beed. 4) Shubhangi d/o Balbhim Chavan, Age-32 years, Occu:Household, R/o-Dattanagar, Naugan College Road, Tq-Beed, Dist-Beed. 5) Sow. Shardabai w/o Balbhim Chavan, Age-55 years, Occu:Household and Agriculture, R/o-Dattanagar, Naugan College Road, Tq-Beed, Dist-Beed. ...PETITIONERS. 2 VERSUS 1) Balbhim s/o Bajirao Chavan, Age-61 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 2) Vasant s/o Damodar Garud, Age-43 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 3) Badrinath s/o Damodar Garud, Age-47 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 4) Baban s/o Annasaheb Lendgule, Age-45 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 5) Ramdas s/o Annasaheb Lendgule, Age-41 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 6) Sunil s/o Dattatraya Antarkar, Age-37 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 7) Sawta s/o Dattatraya Antarkar, Age-26 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 8) Vishwas s/o Dattatraya Antarkar, Age-41 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 3 9) Devidas s/o Dattatraya Antarkar, Age-39 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 10) Sadashiv s/o Limbaji Bansode, Age-38 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. 11) Udhav s/o Limbaji Bansode, Age-48 years, Occu:Agriculture, R/o-Mategaon, Tq-Georai, Dist-Beed. ...RESPONDENTS. ... Mr.C.R. Deshpande Advocate for Petitioners. None present for Respondent Nos.1, and 4 to 11 though served. Mr.V.G. Gangapurwala Advocate i/b. Mr. V.A. Darak Advocate for Respondent Nos. 2 & 3. ... CORAM: K.K. TATED, J. ORDER RESERVED ON : 22ND SEPTEMBER, 2009. ORDER PRONOUNCED ON : 6TH OCTOBER, 2009 COURT'S ORDER : 1. Heard learned counsel for the Petitioners and learned counsel for Respondent Nos. 2 and 3. Though the other Respondents are served, no one remained present on their behalf when the matter was called 4 out for hearing. This Court by order dated 29th April, 2009 issued notice for final disposal returnable after eight weeks. 2. By this Petition under Articles 226 and 227 of the Constitution of India the Petitioners - original plaintiffs challenge the order dated 21st February, 2009 passed by Joint Civil Judge, Senior Division, Beed below application Exhibit 87 in Special Civil Suit No.38 of 2006, by which the trial Court allowed the Respondent Nos. 2 and 3 - original defendants' application for amendment of written statement. The Petitioners - original plaintiffs filed Special Civil Suit No.38 of 2006 in the Court of Civil Judge, Senior Division, Georai for partition and separate possession. In the said suit the Respondent Nos. 2 and 3 filed their written statement on 13th October, 2006. Thereafter the Respondent Nos. 2 and 3 filed application dated 27th January, 2009 under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of written statement. The said Application was opposed by the Petitioners 5 by filing their reply dated 4th February, 2009. It is the case of the Petitioners that the Court below failed to consider that Respondent Nos. 2 and 3 have filed the application for amendment of written statement at belated stage i.e. after the evidence of the Petitioners has commenced. The suit has been filed before the Court of Civil Judge, Senior Division, Georai after the amendment in the Code of Civil Procedure in the year 2002 and as such the proviso of Order 6 Rule 17 of the Code of Civil Procedure would come in the way of amendment after the commencement of the hearing of the suit. This aspect has not been considered by the trial Court. It is the case of the Petitioners that by way of further addition in the written statement, Respondent Nos. 2 and 3 want to incorporate contradictory and inconsistent plea contending that original defendant No.1 in August, 1995 was desirous to sell portion of 27 R's of land out of Block No. 235 and his share to get the water from the well situated in Block No.236. On this ground learned counsel for the Petitioners submitted that the 6 impugned order passed by the trial Court dated 21st February, 2009 is liable to be set aside. Learned counsel for the Petitioners further submitted that the trial Court's order allowing amendment in the written statement is liable to be set aside on the following grounds: i) The proposed amendment withdraws the vital admission on the part of Respondent Nos. 2 and 3. ii) Respondent Nos. 2 and 3 filed application for amendment of written statement at belated stage. iii) The proposed amendment in written statement introduced a totally inconsistent plea. 3. In support of his submissions, learned counsel for the Petitioners relies on the Judgment in the matter of M/s. Mooljee Lukhmidas vs. Shri S.M. Kapadia, reported in 2006 (3) ALL M.R. Page 52. In this case the Bombay High Court held that 7 inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment of the pleadings. Head Note A of the Judgment reads as under: "(A) Civil P.C. (1908), O.6 R.17 - Amendment of pleadings - Powers of Court under O.6, R.17 - Powers are wide enough to allow the parties to amend the pleadings as long as such amendment does not cause injustice to other party and/or cause him injury which could not be compensated in costs - Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment of the pleadings - Admission or withdrawal of admission cannot be rendered nugatory by allowing the amendment causing serious prejudice or injury to the 8 other side." 4. Learned counsel for the Petitioners also relied on the Judgment in the matter of Vidyabai & others vs. Padmalatha and another, reported in 2009 (1) ALL M.R. Page 471. In this Case the Apex Court held that application for amendment of written statement should not be allowed after commencement of trial. Head Note of the Judgment reads as under: "Civil P.C. (1908), O.6. R.17 - Proviso (As inserted in 2002) -Application for amendment of written statement - Not allowed after commencement of trial - Issues framed and affidavit in view of examination-in-chief of witness filed - Would amount to commencement of proceeding- Court will have no jurisdiction at all to allow amendment." 5. Learned counsel for the Petitioners also relied on the Judgment in the matter of Vimal Chand Ghevarchand Jain and others vs. Ramakant Eknath 9 Jajoo, reported in 2009 A.I.R. S.C.W. Page 3624. In this case the Apex Court held that the defendants although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. Para 16 of the Judgment reads as under: "16. The First Appellate Court, however, having regard to the amendment carried out in the written statement setting up a totally inconsistent plea from the one taken before the learned Trial Court by the respondent posed a question as to whether the respondent has discharged the burden placed on him. For the said purpose, critical analysis of the prevarication of the stand taken by the respondent from stage to stage also became relevant. It is true that when a pleading is amended, it subject to just exceptions, takes effect from the date when original one i s filed. it is also true that the Appellate Court, in exercise of its 10 discretionary jurisdiction and subject to fulfillment of the conditions laid down under Order XLI Rule 27 of the Code of Civil Procedure, may allow the parties to adduce additional evidence. Pleadings of the parties, it is trite, are required to be read as a whole. Defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the court in considering as to whe4ther the deposition of a witness and/or a party is truthful or not may consider his conduct. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore . (See Ranganayakamma and another vs. K.S. Prakash (D) By LRs. and others. [2008 (9) SCALE 144]" 6. On the other hand, learned counsel for 11 Respondent Nos. 2 and 3 - original defendants submitted that they filed application for amendment of written statement well in time. He further submitted that by way of amendment these Respondents are explaining the mode of transfer of 67 R's of land from Block No.235. He further submitted that by way of amendment the Respondent Nos. 2 and 3 want to explain in detail the submissions made by them in their written statement and therefore it is not going to affect in any case the interest of Petitioners. He further submitted that the trial Court specifically recorded in the impugned order dated 21st February, 2009 that the Petitioners are entitled to lead additional evidence if so required. Learned counsel for Respondent Nos. 2 and 3 submitted that there is no question of deleting the vital admission given by these Respondents in their written statement. Even if the Petitioners come to the conclusion that by way of proposed amendment these Respondents are taking out their vital admission in written statement, the same can be allowed in view of the following Authorities: 12 (i) Sumesh Singh vs. Phoolan Devi and others, reported in 2009 A.I.R. S.C.W. Page 4331. In this case the Apex Court held that amendment of written statement seeking totally contrary relief of decreeing plaintiff's suit can be allowed on the facts and circumstances of the case. Head Note of this Authority reads as under: " Civil P.C. (5 of 1908), O.VI, R. 17. O.VIII, Rr.3, 5 - Amendment of Written Statement - Resiling from admission - Suit for cancellation of sale deed - Plaintiff alleging that suit property was sold on basis of power of attorney executed in favour of defendant - Defendant denying that she had sold suit land on basis of power of attorney - Mere denial of plaint's averments- Does not amount to categorical admissions - Amendment of W.S. seeking totally 13 contrary relief of decreeing plaintiff's suit - Liable to be allowed." ii) Usha Balashaheb Swami and others vs. Kiran Appasao Swami and others, reported in 2007 (5) Mh. L.J. Page 593. In this case the Apex Court held that if the defendants keeps the admission in their original statement intact and only added certain additional facts which need to be proved by the plaintiff, then same is permissible. Head Note (b) of this Authority reads as under: "(b) Civil Procedure Code, O.6, R.17 - Amendment of written statement - Permissibility - Appellant kept the admissions in their original written statement intact and only added certain additional facts which need to be proved by the plaintiff and defendants 2 to 8 to get shares in 14 suit properties alleged to have been admitted in their written statement - Amendment was permissible." iii) Basavanappa Bhimsha Koli @ Jamdar vs. Sunil Basavanappa Jidge, reported in 2008 (1) ALL M.R. Page 682. In this case the Bombay High Court held that merit or correctness of averments sought to be added by proposed amendment need not be considered at the time of considering the application under Order 6 Rule 17 of the Code of Civil Procedure Code. Head Note of this Authority reads as under: " Civil P.C. (1908), O.6. R.17 - Amendment of pleading - Merit or correctness of averments sought to be added by proposed amendment - Need not be considered by trial Court - Held, amendment ought to be allowed where there will be no 15 change in the nature of the suit and will avoid multiplicity of the proceedings." iv) Coutinho s/o late Caetano P. Coutinho and others vs. Shri Conception Coutinho @ Conceicao Coutinho s/o. late Caetano P. Coutinho and others, reported in 2008 (1) ALL M.R. Page 904. In this case the Bombay High Court held that withdrawal of the admission made in the written statement by way of amendment can be allowed. Head Note of this Authority reads as under: "Civil P.C. (1908) O.6, R.17 - Amendment of written statement - Withdrawal of admission made in written statement - Amendment of written statement made with view of helping Plaintiff - Cannot be said to be a case which displaces the case of plaintiff - Order allowing 16 amendment of written statement warrants no interference." 7. Learned counsel for Respondent Nos. 2 and 3 further submitted that amendment can be allowed at belated stage also. In support of his contention, he relied on the following Authorities: a) Manohar Dhondiram Godme and others vs. Dharmaraj Vishnu Godme and others, reported in 2009 (5) Mh. L.J. Page 230. In this case the Bombay High Court held that amendment allowed at belated stage cannot be interfered with under Articles 226 and 227 of the Constitution of India. Head Note of this Authority reads as under: "Civil Procedure Code, O.6, R.17 - Amendment to the plaint - Limitation - Suit for recovery of possession - Alienation of land came to the 17 knowledge of the plaintiff/ appellant when the first appeal was pending - Prayer by plaintiff to amend the plaint to include the prayer for cancellation of alienations - Application filed by the plaintiff seeking amendment, indisputably is at belated point of time - First Appellate Court allowing the amendment taking view that amendment cannot be4 refused on technical grounds nor it can be refused merely on the ground of prolonged delay in filing application specifically when the party can be compensated by costs - No case for interference." b) Dhanpal Balu Lhawale and others vs. Adagounda Nemagounda Patil (D) by Prop. Lr., reported in 2009 ALL S.C.R. Page 1536. In this Case the Apex Court allowed amendment in suit in Special Leave Petition. Para 3 of this Authority reads as under: 18 "3. In the facts of the case, we are of the opinion that this amendment application needs to be allowed in the face of the fact that, as of today, the claim of the plaintiff respondent, Adagouda Nemagouda, on the basis of the will and in the alternative, on the basis of a tenancy has been rejected and his status is only that of a trespasser." c) Twist Spin Industries vs. KMH Enterprises, reported in 2009 (4) Bom.C.R. Page 216. In this case the Bombay High Court held that now the law is well settled that provision under Order 6 Rule 17 of the Code of Civil Procedure is not mandatory but is directory. It is further held that at the time of allowing application for amendment, lenient view is to be taken by the Court. 19 d) NTPC Ltd. vs. Reliance Industries Ltd., reported in 2009 (4) ALL M.R. Page 24. In this case the Bombay High Court held that amendment application under Order 6 Rule 17 to be decided on the facts and circumstances of the case in hand and the amendment normally should not be disallowed on technical grounds. e) Andhra Bank vs. ABN Amro Bank N.V. and others, reported in 2008 (1) Bom. C.R. Page 836. The Apex Court in this matter held that delay is no ground for refusing the prayer for amendment. Head Note (A) of this Authority reads as under: "(A) Code of Civil Procedure, 1908, O.6 R.17 - Written Statement - Amendment of - Relevance of delay - 20 Held, settled position of law is that delay is no ground for refusal for prayer of amendment. Only point to be seen at this time is whether such amendment would be necessary for decision of controversy between parties in suit. Court cannot go into merits of document at this stage." f) Usha Devi vs. Rijwan Ahmad and others, reported in 2008 (5) Mh. L.J. Page 82. In this case the Apex Court held that merit of amendment is not relevant for allowing the prayer for amendment and same should not be refused on ground of delay. 8. Learned counsel for Respondent Nos. 2 and 3 further submitted that there is no bar under law that by way of amendment inconsistent plea should not be allowed. In support of this submission, he relied on the Judgment in the matter of Bharat Petroleum Corporation Ltd. vs. Precious Finance 21 Investment Ltd., reported in 2007 (1) Mh. L.J. Page 331. In this case High Court held that Courts are required to take more liberal view in allowing amendment of written statement than of plaint and question of prejudice is less likely to operate with same rigour in former than in latter case. Head Note (k) of this Authority reads as under: "(k) Civil Procedure Code (as amended by Amendment Act, 2002) O.6 R.17 - Amendment of pleadings - An amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle - The plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim. However, adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action - Courts are, therefore, required to take more liberal view in allowing amendment 22 of written statement than of plaint and question of prejudice is less likely to operate with same rigour in former than in latter case." 9. On the basis of the above mentioned submissions, learned counsel for Respondent Nos. 2 and 3 submitted that there is no substance in the present Writ Petition and same is liable to be dismissed. 10. I have carefully gone through the copy of plaint, written statement and proposed amendment in written statement. It is crystal clear that Respondent Nos. 2 and 3 want to explain the way in which the land admeasuring 67 R's from Block No.235 is disposed of. Not only that the proposed amendment is useful to the Court for deciding the dispute between the family members i.e. Petitioners and Respondents because the present litigation is for the purpose of partition and separate possession of their ancestral properties. Learned counsel for the Petitioners submitted that Respondent Nos.2 and 3 filed their application for amendment to take out 23 vital admission made by them in their written statement. It is not possible to accept the Petitioners' submission on this point because the amendment sought by Respondent Nos. 2 and 3 is in the nature of explanation about disposal of land admeasuring 67 R's from Block No.235. In any case the same can be allowed as held by the Judgments in the matters of Sumesh Singh (supra), Usha Balashaheb Swami (supra), Basavanappa Bhimsha Koli (supra), Coutinho s/o late Caetano P. Coutinho (supra). 11. The second submission made by learned counsel for the Petitioners that Respondent Nos. 2 and 3 filed their application for amendment in written statement after the trial commenced. It is admitted fact that the cross examination of Petitioner is not yet over and before that Respondent Nos. 2 and 3 filed their application for amendment. In any case considering the facts and circumstances of the present case and in the interest of justice, same can be allowed as held by the Authorities in the matters of Manohar Dhondiram Godme (supra), Dhanpal 24 Balu Lhawale supra), Twist Spin Industries (supra), NTPC Ltd. (supra), Andhra Bank (supra), Usha Devi (supra). 12. Learned counsel for the Petitioners submitted that by way of amendment the Respondent Nos. 2 and 3 want to introduce inconsistent plea in their written statement. His submissions cannot be accepted because the Respondent Nos. 2 and 3 want to introduce the amendment just to explain how the land admeasuring 67 R's from Block No.235 is disposed of. Not only that, considering the Judgment in the matter of Bharat Petroleum Corporation Ltd. vs. Precious Finance Investment Ltd.(supra), introduction of inconsistent plea is also allowed in the facts and circumstances of the case. In the present case, Respondent Nos. 2 and 3 want to explain the mode of disposal of land admeasuring 67 R's from Block No.235 by introducing amendment to the written statement. Therefore, it is not possible to accept the submissions made on behalf of the Petitioners on the ground of inconsistent plea. 25 13. On the above mentioned facts and circumstances, I do not find any substance in the present Writ Petition and the same is dismissed with no order as to the costs. [K.K. TATED, J.] asb/SEPT09/wp2772.09