AKSHAYA RESTAURANT v.

P. ANJANAPPA AND ANR.

MARCH 27, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.]

Code of Civil Procedure, 1908: Order 6 Rule 17.

Pleadin~Amendment of-Suit-Written statement-Defendants' ad- C mission as to sale-Amendment of written statement:-Plell that agreement was not for sale but for develQPment of land for mutual benefit of partiej-Amendment held pemiissible.

In a suit for perpetual injection filed by the appellant plaintiff, the respondent-defendants admitted in the written statement that they had D entered into an agreement of sale with the appellant-plaintifT. Subsequently an application was filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 for amendment of written statement stating that the agreement was not for sale but for the development of the such land for the mutual benefit or the parties. The Trial Court dismissed the applica- E tion and held that it was not open to the respondents to explain whether the agreement was for sale or for mutual benefit because the agreement was subsilentio in that behalf. The High Court allow'ed the revision petition permitting the amendment or written statement.

In plaintifl's appeal to this Court it was contended that the respon F dent-defendants having made an admission that they bad entered into a sale agreement were precluded to wriggle out from the admission; the High Court was not justified in permitting the amendment because withdrawal of admission and introduction of additional facts was inconsistent.

Dismising the appeal, this Court

HELD : An admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in the written statement

definite stand was taken but sufisequently in the application for amend ment it was sought to be modified. In that view of the matter there is no H material irregularity committed by the High Court in exercising its 'power 1154

under Section 115 C.P.C. in permitting amendment of the written state- A ment. (1157-C] ·

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4407 of 1995.

From the Judgment and Order dated 6.9 .94 of the Karnataka High B Court in C.R.P. No. 5246 of 1992.

G.V. Chandrashekar and P.P. Singh for the Appellant.

S.S. Javeli and E.C. Vidyasagar with him for the Respondents. c The following Order of the Court was delivered :

Leave graned.

We have heard the counsel on both sides. Admittedly the respondents are owners of the land measuring 5 acres 39 guntas in Bhoopasandra D village Kasaba Hobli, Bangalore North Taluk. An agreement dated 25.1.1991 was entered into between the appellants and the respondents. On the basis thereof the appellants filed a suit for perpetual injunction restraining the respondents from interdicting with his possession and further activities thereon. The written statement was filed taking certain E stands. In paragraph 6 of the written statement, the respondents have stated thus:

"It is true that this defendant has entered into an agreement of sale with the plaintiff, agreeing to sell the suit schedule property on 25.1.1991 and for a sale consideration of Rs. 29,87,000 and that F day the plaintiff has paid sum of Rs. 2,50,00 as token advance and agreed to pay a sum of Rs. 5,00,000 within 2 weeks from the date of agreement and the balance amount shall be paid on or before 31.3.1992. but the possession of the schedule property was not delivered to the plaintiff at all. It is relevant to state here that the G plaintiff has not acted upon as per the terms of the agreement and he has not paid further advance amount of Rs. 5,00,000 till 19.3.1991, in spite of repeated requests and demands made by the defendant. Hence the defendant was constrained to cancel the • agreement dated 25.1.1991 by issuing a legal notice on 19.3.1991.

It is also relevant to state here that though there is a mention H

SUPREME COURT REPORTS

[1995] 2 S.C.R.

regarding delivery of possession of the schedule property to the plaintiff in the agreement, the possession has not been delivered to the plaintiff at any point of time. On the other hand the defendant is in peaceful possession and enjoyment of the schedule property and all the revenue records stands in the name of this defendant. It is further submitted that the defendant' is in actual possession of the schedule land which makes it more crystal clear from the documents referred to above and produced along with the written statement."

f Subsequently an application under order 6 Rule 17 was filed for amend- "\ C ment of the first sentence of paragraph 6 which reads thus:

"Delete the averments made in para 6 of the Written Statement "it is true that this defendant has entered into an agreement of sale with the plaintiff, agreeing to sell the suit schedule property on 25.1.1991 for a sale consideration amount of Rs. 29,87,000".

In place of it add;

It is incorrect to state that the defendant have entered into an agreement of sale with the plaintiff on 25.1.1991. It is true that this defendants have entered into an agreement with the plaintiff on 25.1.1991 for the development of the suit schedule land for the mutual benefit of the parties.

2. Delete the words, "of sale" in fifth line of para 8 of the written statement.

3. Delete the words "of sale" at lines 9 and 13 of the para 5 of th@.....L

~-' ~- objection statement to I.A. ·

4. Delete the words "of sale" at lines 9 and 13 of para 5 of the -T~ objection statement to I.A. No. 2."

The trial court dismissed the petition holding that it is not open to the respondents to explain whetheJ the agreement entered into was an agreement of sale or for mutual benefit since the agreement was subsilentio in that behalf. The High Court C.R.P. No. 524/91 by judgment dated H 6.9.1994, allowed the amendment. Thus this appeal by special leave_.

Learned counsel for the appellant vehemently contends that having A made an admission that the respondents had entered into an agreement of sale and having made certain averments in support thereof, it was not open to the respondents to wriggle out from qie admission. Admission is a material piece of evidence which would be in favour of the appellant and binds the respondents when the admission is sought to be withdrawn and B some additional facts are sought to be introduced, it. would be inconsistent and the High Court was not justified in permitting such an amendment.

We find no force in the contention. It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement C definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 C.P.C. in permitting amendment of the written statement.

The appeal is accordingly dismissed. No costs.

Since the terms of the agreement are subject matter in the suit, it would be open to the parties while adducing evidence to explain the terms and conditions of the convenant and the circumstances in which they came

to be executed.

T.N.A.

Appeal dismissed.