SCA/22406/2006 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22406 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= LAXMANBHAI RAMBHAI JALU - Petitioner(s) Versus BHANIBEN. D/O,RAVJIBHAI @ REVLABHAI & 6 - Respondent(s) ========================================================= Appearance : MR BA SURTI for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR BP GUPTA for Respondent(s) : 1, UNSERVED-EXPIRED (N) for Respondent(s) : 2, RULE SERVED for Respondent(s) : 2.2.1,4 - 6. SERVED BY AFFIX.-(R) for Respondent(s) : 2.2.2,2.2.3 - 3. MR PREMAL R JOSHI for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/10/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original SCA/22406/2006 2/14 JUDGMENT plaintiff has prayed for an appropriate Writ or order quashing and setting aside the impugned order dated 05.10.2006 passed by the learned Principal Senior Civil Judge, Surat below Exh.55 in Special Civil Suit No.269 of 2005 by which the learned Trial Court has allowed the said application submitted by defendant Nos.1 to 6 for amending written statement under Order VIII Rule 9 and Order VI Rule 17 of the Code of Civil Procedure. 2. The petitioner – plaintiff had instituted Special Civil Suit No.269 of 2005 in the Court of learned Civil Judge, S.D., Surat for declaration and permanent injunction and specific performance of agreement to sell. That respondent Nos.1 to 6 – original defendant Nos.1 to 6 filed their written statement at Exh.16 and as per the petitioner – plaintiff in written statement respondent Nos.1 to 6 have admitted following facts : (i) That they had executed the registered sale deed for the land in question in favour of the petitioner (ii) That they had put the petitioner in possession of the land in question from the SCA/22406/2006 3/14 JUDGMENT date of registered sale deed (ii) That when they had sold the land in question to the petitioner by registered sale deed the respondent Nos.1 to 6 were not knowing at all about restriction of 73 AA and pertaining to the entry of 73AA was not in the village record. It is further stated that when they had obtained the certified copy of village form No.7/12 on 11.04.2002 no such entry was available in the village record pertaining to 73AA on 11.04.2002. (iv) That in the year 2002, the respondent Nos.1 to 6 had given an application for permission under Section 73AA and they came to know from the office of the Mamlatdar that the said file has been sent to the Collector. That from the office of Collector they came to know that the said file is not traceable and therefore, they had given a fresh application on 23.09.2005 which is still pending. (v) It has also stated that they do not know the respondent No.7. They do not know the proposed society “Shreeji”. That respondent No.7 has obtained the permission for the land in question but they do not know the respondent No.7 or his application. The respondent No.1 to 6 have not made any endoresement as well as they have not given any thumb mark. (vi) That pertaining to the permission dated SCA/22406/2006 4/14 JUDGMENT 04.10.2005, the respondent Nos.1 to 6 had informed the Dy.Collector, Surat, Mamlatdar, Surat and Talati-cum- Mantri of Village Viariav and also to the Registrar, Gujarat Cooperative Societies and also given notice to respondent No.7 and then the objection. That about the same on 26.10.2005 respondent Nos.1 to 6 have also given objection to the Collector, Surat and also filed an objection when the respondent No.7 has tried to make an entry about the said permission in the village record and that the respondent Nos.1 to 6 has also given application to cancel the permission dated 04.10.2005 before the concerned authorities. 3. Thus according to the petitioner – plaintiff respondent Nos.1 to 6 – original defendants supported the case of the petitioner fully. It appears that thereafter, original defendant Nos.1 to 6 made application Exh.38 on 27.10.2006 and in the said application they asked permission to change the advocate and appoint another advocate and also prayed for permission to file another written statement. They also submitted application Exh.37 requesting the learned Judge for production of documents and the SCA/22406/2006 5/14 JUDGMENT said application came to be allowed partly. The defendants were permitted to produce documents and change advocate. Permission to file fresh written statement was not granted. It appears that thereafter respondent Nos.1 to 6 – original defendant Nos.1 to 6 gave application under Order VI Rule 17 at Exh.55 and requested to permit them to amend written statement under Order VIII Rule 9 of the C.P.C. Said application was opposed by the petitioner by submitting reply at Exh.60 and after hearing both the parties, the learned Trial Court allowed the application of defendant Nos.1 to 6 by impugned order dated 05.10.2006 granting permission to them to amend written statement on payment of costs of Rs.1500/- (Rupees One Thousand and Five Hundred only). Being aggrieved and dissatisfied with the order passed by the learned trial Court passed below Exh.55 in permitting defendant Nos.1 to 6 to amend written statement, the petitioner – plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Mr.B.A.Surti, learned Advocate for the SCA/22406/2006 6/14 JUDGMENT petitioner has submitted that the learned trial Court has materially erred in allowing application Exh.55 permitting defendants to amend written statement which is just contrary to earlier written statement. It is submitted that the learned trial Court ought to have appreciated that in the earlier written statement defendant Nos.1 to 6 had supported the case of the petitioner and there were certain admissions in the written statement fully supporting the case of the petitioner – plaintiff and now by proposed amendment defendant Nos.1 to 6 wants to get out of the admission and wants to back out from the said admission which is not permissible. It is submitted that by proposed amendment, defendant Nos.1 to 6 wants to displace the case of the petitioner. Mr.Surti, learned Advocate for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Heeralal v/s. Kalyan Mal & Ors. reported in 1998 (1) GLH 605 as well as another decision of the Hon'ble Supreme Court in the case of M/s.Modi Spinning & Weaving Mills Co.Ltd. And Anr. V/s. M/s. Ladha Ram & Co. reported in AIR 1977 SC 680. He has also relied upon the decision of the SCA/22406/2006 7/14 JUDGMENT learned Single Judge in the case of Patel Ganeshbhai Khushaldas v/s. Patel Becharbhai Madhavlal reported in AIR 2004 Guj. 136. By making above submissions and relying upon aforesaid decisions, it is requested to allow present Special Civil Application. 5. Petition is opposed by Mr.B.P.Gupta, learned advocate appearing on behalf of respondent Nos.1 to 6. It is submitted that original defendants are illiterate persons and they were not knowing what was stated in the earlier written statement and therefore, when they realized their mistake, they submitted application for amending written statement submitting true facts and accepting the same when the learned trial Court has allowed the application permitting defendant Nos.1 to 6 to amend written statement on imposing costs, same does not require interference of this Court in exercise of powers under Article 227 of the Constitution of India. It is submitted by Mr.Gupta, learned advocate for the respondents that earlier written statement was filed by one another advocate and they relied upon the advocate and signed written statement which was SCA/22406/2006 8/14 JUDGMENT factually incorrect and therefore, they changed the advocate and submitted application for amending written statement and same is partly allowed by the learned trial Court. Mr.Gupta, learned Advocate for the respondents has relied upon decision of the Hon'ble Supreme Court in the case of Akshaya Restaurant v/s. P.Anjanappa & Anr. reported in 1995 (2) GLH 620 by submitting that as held by Hon'ble Supreme Court in the said decision even admission can be explained and amendment in the written statement by which admission made earlier sought to be withdrawn by way of amendment is permissible. By making above submissions and relying upon aforesaid decision, it is requested to dismiss present Special Civil Application. 6. Heard the learned Advocates appearing on behalf of the respective parties. 7. At the outset, it is required to be noted that suit is filed by the petitioner – plaintiff for declaration and permanent injunction on basis of registered sale deed dated 27.05.2002 executed by defendant Nos.1 to 6. As per petitioner, respondent SCA/22406/2006 9/14 JUDGMENT No.7 was trying to purchase the said land in the name of proposed society and respondent Nos.1 to 6 were likely to support respondent No.7. Respondent No.7 made application before the Collector, Surat behind the back of the petitioner under Section 73AA of the Bombay Land Revenue Code in the name of proposed society i.e. “Shreeji Society”. In the suit filed by the petitioner, respondent Nos.1 to 6 original defendant Nos.1 to 6 submitted Written statement at Exh.16 by admitting that they had executed registered sale deed in favour of the petitioner; they had put the petitioner in possession of the land in question from the date of registered sale deed; that when they had sold the land in question to the petitioner by registered sale deed the respondent Nos.1 to 6 were not knowing at all about restriction of 73 AA and pertaining to the entry of 73AA was not in the village record; when they had obtained the certified copy of village form No.7/12 on 11.04.2002 no such entry was available in the village record pertaining to 73AA; that in the year 2002, the respondent Nos.1 to 6 had given an application for permission under Section 73AA and they came to know from the office of SCA/22406/2006 10/14 JUDGMENT the Mamlatdar that the said file has been sent to the Collector, however, from the office of Collector they came to know that the said file is not traceable and therefore, they had given a fresh application on 23.09.2005 which is still pending. In the written statement defendant Nos.1 to 6 had also specifically admitted that that they do not know the respondent No.7 as well as they do not know the proposed society “Shreeji”; that respondent No.7 has obtained the permission for the land in question but they do not know the respondent No.7 or his application and they have not made any endorsement as well as they have not given any thumb mark. Now by proposed amendment in the Written statement it appears that defendant Nos.1 to 6 want to back out from the admission made in the written statement. Thus amendment sought in the written statement is likely to displace the plaintiff's case. By the proposed amendment in the written statement admissions made earlier by defendant Nos.1 to 6 are sought to be withdrawn. By the proposed amendment defendant Nos.1 to 6 wants to contend that they have entrusted the possession of the suit land to 'Shreeji Cooperative Housing SCA/22406/2006 11/14 JUDGMENT Society' by selling at price of Rs.42,27,900/-. They also now contend that they have not sold the suit land to the petitioner – plaintiff and sale price of the suit land as mentioned in the sale deed in favour of the petitioner has not been paid by the plaintiff. Thus entire new case is sought to be made out by defendant nos.1 to 6. It appears that for whatsoever reason respondent Nos.1 to 6 have now joined hands with defendant No.7 and after they have changed the advocate application for amendment in the written statement has been made. It is to be noted that earlier written statement was made on affidavit by defendant Nos.1 to 6. It was the contention on behalf of defendant Nos.1 to 6 that they were illiterate and they relied upon their advocate and signed written statement, but no action has been taken against the advocate. As stated above written statement is on affidavit signed before the Court. As stated above by the proposed amendment admission made by the defendants made earlier are sought to be withdrawn and amendment introduces entirely new case. 8. As held by the Hon'ble Supreme Court in the SCA/22406/2006 12/14 JUDGMENT case of Modi Spinning & Weaving Mills Co. Ltd. (Supra), amendment introducing entirely different new case and seeking to displace the plaintiff completely from admissions made by defendants in written statement is liable to be rejected. Subsequent decision relying upon aforesaid decision, the Hon'ble Supreme Court in the case of Heeralal (supra) has also taken similar view. It is held by the Hon'ble Supreme Court in the aforesaid decision that by way of amendment if admission made earlier is sought to be withdrawn and the said amendment is likely to displace the plaintiff's case, such amendment cannot be allowed. Now so far as the decision of the Hon'ble Supreme Court in the case of Akshaya Restaurant (supra) relied upon by the learned advocate for the respondent Nos.1 to 6 is concerned, it will not be applicable to the facts of the present case. In the case before the Hon'ble Supreme Court by way of amendment in the written statement earlier written statement was sought to be modified and explained. In the facts and circumstances of the case, decision of the Hon'ble Supreme Court in the case of Modi Spinning & Weaving Mills Co. Ltd. (Supra), is SCA/22406/2006 13/14 JUDGMENT squarely applicable. Under the circumstances and considering aforesaid decision and facts stated herein above by proposed amendment in the written statement, defendant Nos.1 to 6 seeks to displace plaintiff completely from admissions made by defendants in written statements, same is not permissible. Impugned order passed by the learned trial Court below Exh.55 permitting defendant Nos.1 to 6 to amend written statement deserves to be quashed and set aside. 9. Accordingly, present Special Civil Application is allowed. Impugned order dated 05.10.2006 passed by the learned Principal Senior Civil Judge, Surat below Exh.55 in Special Civil Suit No.269 of 2005 is hereby quashed and set aside and application Exh.55 is hereby dismissed. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. [M.R.Shah,J.] satish SCA/22406/2006 14/14 JUDGMENT