Case: S.Malla Reddy Vs. M/S Future Builders Co-Op.Sty.

The plaintiff-respondent M/s. Future Builders Co-op. Housing Society (in short the plaintiff Society) filed a suit against the defendant-appellants for declaration of title in respect of the property mentioned in the schedule of the plaint (in short the suit property) and for perpetual injunction restraining the defendants from interfering with possession. The case of the plaintiff-Society is that the Society is a registered Society under the Andhra Pradesh Co-operative Societies Act with the object to acquire or purchase land for the benefit of its members and render it fit for habitation. The Society was founded by several promoters including the first defendant-S. Malla Reddy (appellant herein). The plaintiffs further case is that for the purpose of registration under Co-operative Societies Act, it was necessary to show to the Registrar that they have entered into an agreement for purchase of land for the benefit of its members. It was alleged that before the Society was registered, its promoters identified the suit land as fit for the purpose and negotiated with the owner and entrusted the work to the first defendant for effecting purchase after measurement and a sum of Rs. 10,000/- was paid to him. The first defendant alleged to have executed an agreement on 8.3.1978 in favour of the Chief Promoter of the Society, inter alia, agreeing that the first defendant will get the land measured and obtain legal opinion and pay the money to the land owner. It was agreed that the sale deed would be obtained in the name of the first defendant and a patta would be got transferred in his name or of his nominee for the benefit of the Society. The Society was registered on 28.08.1981 and defendant No.1 having obtained a Sale Deed dated 02.01.1979 and transfer of patta in the name of himself and defendant Nos. 2 to 4 (appellants herein), who are his wife and sons in respect of the suit property, had delivered possession to the Society and they further agreed to secure the patta in the name of the plaintiff-Society. A Memorandum of Agreement dated 16.09.1981 was also executed to the effect that the plaintiff would hold the land as owner. It was alleged by the plaintiff-Society that the defendants, in spite of several requests and demands, were postponing the transfer of patta in respect of the suit property in its name on one pretext or the other. Hence, suit5. On being summoned, the defendants appeared and filed a joint written statement on 19.01.1995 admitting the claim of the plaintiff stating that after filing of the suit there was a mediation wherein the dispute was settled and, accordingly, a sum of Rs. 1,00,000/- was paid to them and they were then willing to transfer the patta in respect of the suit property in favour of the plaintiff who had already acquired title. The defendants, therefore, prayed to the court to decree the suit6. Controversy started when the defendants after filing of the written statement and admitting the claim of the plaintiff filed a petition being I.A. No.2217 of 1995, later renumbered as I.A. No.162 of 2000, seeking permission to change their advocates on the ground that they were acting detrimental to their interest by filing written statement contrary to the instructions. The said petition was objected by the plaintiff. The trial court by order dated 07.02.2000 permitted the defendants to change their advocates without prejudice to the rights of the parties. Thereafter, defendants filed another petition under Order VI Rule 16 of the Code of Civil Procedure (CPC) being I.A. No.415 of 2000 on 28.02.2000 seeking leave of the court to strike out the pleadings in the written statement or to expunge the written statement and to permit them to file a detailed written statement. It was alleged that the written statement filed earlier was in collusion with the plaintiff contrary to the instructions given by them to their advocate. Another petition was filed by the defendants being I.A. No.416 of 2000 under Order VIII Rule 9 and Order VI Rule 5 of CPC seeking leave of the court to permit them to file a detailed written statement. Some more developments took place during the pendency of those petitions. The youngest son of the first defendant filed a petition being l.A. 1819 of 2000 seeking leave of the court to implead him as party to those two interlocutory petitions which was, however, allowed and the said son was brought on record7. The trial court after hearing the parties dismissed both the petitions being I.A. Nos.415 and 416 of 2000 by common order dated 04.01.2002. The defendant- appellants challenged the said order by filing Civil Revisions in the High Court being CRP Nos.502 and 505 which were ultimately dismissed on 18.09.2002. The defendant-appellants then filed review petition being Review CMP No. 2102 of 2003 which was also dismissed on 25.06.2003. The defendants then preferred appeals to this Court in Civil Appeal Nos. 7940 to 7942 of 2004 which were also dismissed on 15.03.20078. After the defendants lost the claim upto this Court and their prayer was refused, a fresh petition under Order VI Rule 17 CPC was filed seeking leave of the Court to amend the written statement. The said application was registered as I.A. SR No. 593 of 2007. The trial court rejected the said application by a non-speaking order. The order was challenged in the High Court in Revision which was disposed of with the directions to the trial court to register the application and dispose of the same by passing a reasoned order. The trial court in compliance of the aforesaid directions finally heard the amendment petition and by order dated 27.09.2007 allowed the petition permitting the defendants to amend the written statement9. The plaintiff-Society challenged the aforesaid order allowing amendment of the written statement by filing revision petitions before the High Court. The said revision petitions filed by the plaintiff-Society under Article 227 were heard at length and finally those petitions were allowed by the High Court vide order dated 28.12.2007 and the order of the trial court allowing amendment of the written statement was set aside. Hence, these appeals by special leave filed by the defendant-appellants.

Reasoning:
Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable.