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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3914 OF 2013
[Arising out of SLP (C) No.12497 of 2008]
S. Malla Reddy … Appellant(s)
vs.
M/s. Future Builders Co-operative Housing
Society & Ors. … Respondent(s)
WITH
CIVIL APPEAL NO. 3916 OF 2013
[Arising out of SLP (C) No.17029 of 2009]
Jai Lakshmi … Appellant(s)
vs.
M/s Future Builders Co-operative
Housing Society & Ors. … Respondent(s)
AND
CIVIL APPEAL NO.3915 OF 2013
[Arising out of SLP (C) No.28828 of 2008]
Raghava Reddy & Anr. … Appellant(s)
vs.
M/s Future Builders Co-operative
Housing Society & Ors. … Respondent(s)
J U D G M E N T
M.Y. EQBAL, J.Page 2
Leave granted.
2. The defendants (appellants herein) have assailed the
common order dated 28.12.2007 passed by a learned Judge of the
Andhra Pradesh High Court, whereby the Revision Petitions filed by
the plaintiff-respondent (M/s Future Builders Coop Society) under
Article 227 of the Constitution of India have been allowed and the
order passed by the trial court allowing amendment in the written statement has been set aside.
3. The facts of the case lie in a narrow compass.
4. 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 Cooperative 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 plaintiff’s 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
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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, suit.
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5. 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 suit.
6. 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
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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 record.
7. 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 defendantappellants 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 15.03.2007.
8. 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
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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 statement.
9. 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.
10. We have heard the learned counsel appearing for the
parties. Mr. Dushyant A. Dave, Senior Advocate and Mr. Huzefa A.
Ahmadi, Senior Advocate appearing for the defendant-appellants drew
our attention to various decisions of this Court for the proposition that
the admission made in the written statement can be withdrawn and
inconsistent plea can be taken in the written statement. Learned
counsel also tried to impress us that the order passed on the petition
under Order VI Rule 16 and Order VIII Rule 9 will not operate as res
judicata on the subsequent application filed under Order VI Rule 17 of
CPC. Learned counsel submitted that the High Court has not correctly
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appreciated the settled principle of law and has passed the impugned
order without considering the entire gamut of the case.
11. On the other hand, Mr. L. Nageswara Rao, learned Senior
Advocate appearing for the plaintiff-Society (respondent herein) firstly
contended that the application for amendment is liable to be rejected
on the sole ground that it was filed 13 years after the institution of the
suit and that too when the trial of the suit had begun and the
plaintiff’s witness was cross- examined. Mr. Rao contended that the
disruptive plea cannot be allowed to be taken by way of amendment
in the written statement. According to the learned counsel, the
ground taken by the defendants for amending the written statement
has already been discussed in the earlier petition filed under Order VI
Rule 16 and that under Order VIII Rule 9 and Order VI Rule 5 CPC. The
said applications were rejected by the trial court and the order was
affirmed by this Court also.
12. Before appreciating the rival contentions, we would like to
first reproduce the written statement filed by the defendantappellants in the suit. The written statement contains of only four
paragraphs, which are as under:-
“WRITTEN STATEMENT FILED UNDER ORDER 8 RULE 1
CVIL PROCEDURE CODE by Defendants 1 to 4
1. The first defendant was entrusted with the work of
purchase of the land for the Plaintiff’s Society before
its incorporation. Since there was delay in the
registration and incorporation of the Society, the suit
land was purchased in the name of the First
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Defendant who is also one of the Promoters from Sri
Mohammad Sarvar and others and the patta was
transferred in the name of these defendants. These
defendants held it for the benefit of the plaintiffs and
after the Society was incorporated on 28.8.2001,
delivered the land to the plaintiff and also executed a
Memorandum dated 16.9.1981 which was ratified by
the Plaintiff Society.
2. One of the terms of the Memorandum was that
the plaintiff agreed to pay the expenses incurred by
the defendants for the development and protection of
the land. Since the plaintiff postponed the settlement
of accounts, these defendants did not apply for
transfer of patta in favour of the plaintiff.
3. After the suit is filed there is mediation and
settlement and a sum of Rs. 1,00,000/- (Rupees one
lakhs only) is paid as full quid to these defendants and
these defendants are willing to transfer of the patta in
favour of the plaintiff who has already acquired the
title as stated in the plaint.
4. Hence the suit may be decreed as prayed for
but without costs.
Defendants
1.
2.
3.
4.
Counsel for the Defendants 1 to 4
Verification
The facts stated above are true to the best of our
knowledge, belief and information.”
13. From bare perusal of the written statement, it is
manifestly clear that the defendant-appellants categorically admitted
not only the case of the plaintiff but also acknowledged receipt of Rs.
1,00,000/- and their willingness for transfer of patta in favour of the
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plaintiff. The defendants, on the basis of such admission, prayed to
the court that the suit be decreed but without any costs.
14. As noticed above, the defendant-appellants filed
application on 28.02.2000 under Order VI Rule 16 of CPC being I.A. No.
415 of 2000 praying that the earlier written statement be struck out
since the same was against their interests. Another application being
I.A.No.416 of 2000 under Order VIII Rule 9 CPC was filed praying that
the defendants may be permitted to file detailed written statement in
the suit since the earlier written statement filed by them was against
their interests. Both applications were taken up together by the trial
court and disposed of by common order dated 04.01.2002. The trial
court while rejecting the aforementioned two applications held that
the defendant-appellants cannot be allowed to substitute their written
statement in the suit whereunder there was an admission of the claim
of the plaintiff-Society. While rejecting the applications, the trial court
elaborately discussed the facts of the case and considered the
arguments advanced by the lawyers as also the decisions relied upon
by them with regard to withdrawal of admission by filing fresh written
statement.
15. At this stage, we must mention that even before the suit
was instituted by the plaintiff-Society, the defendants had filed a
caveat duly supported by affidavit through the same advocate
wherein the entire claim of the plaintiff-Society was admitted. The
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only grievance made in the caveat was that without settlement of the
amount due as agreed under the Memorandum of Agreement, the
plaintiff-Society was trying to lay out the suit land and to dispose of
the same without paying the amount due. The relevant paragraphs of
the trial court order dated 04.01.2002 are quoted hereinbelow (from
pages 165-170 of paper book):
“16. The learned counsel for the petitioner,
referring to the earlier suit litigation between the
defendants and others, contended that there is no
reason for the defendants to admit the suit claim of
the plaintiffs society but for the reasons that fraud
was played upon the defendants in filing their written
statement. The learned counsel for the petitioner
relying upon the decision in BHIKAJI KESHAO JOSHI
AND ANOTHER vs. BRIJLAL NANDLAL BIYANI and
OTHERS (AIR 1955 SC 610) contended that the Court
can order strike out of the written statement and
permit the defendants to file substituted written
statement with specific pleadings. In the said
decision, the petitioner in the said election petition
made vague allegations of corrupt practices of the
respondent and in the said circumstances it was found
that the court can exercise its powers and call for
better particulars. It is not the case of the petitioners
– defendants herein that their written statement
pleadings are vague and that therefore, to furnish
better particulars the earlier written statement filed
on their behalf may be struck out and they may be
permitted to file a detailed substituted written
statement. In the written statement filed on behalf of
the defendants in the suit OS No.408/94 (OS 1 of 2000
on the file of this court) the defendants had
categorically admitted the entire suit claim and have
further mentioned that they had no objection for the
suit to be decreed. No doubt, it is the contention of
the petitioners that their advocate Sri Sunil Kumar
obtained their signatures on blank paper and that is
contrary to their instructions he prepared the written
statement in collusion with the plaintiff- society
admitting the suit claim for which they had
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complained against the said advocate to Bar Council
of Andhra Pradesh. Ex.B.1 is the Xerox certified copy
of caveat number 178/94 on the file of IIIrd Additional
Judge, City Civil Court, against the plaintiff society on
07.07.1994. In the said caveat petition also, the
defendants in the suit admitted the entire claim of the
plaintiff-society but the grievance of the defendants
under that caveat was without settlement of the
amount due as agreed under the memorandum of
agreement, the plaintiff society was trying to lay out
the suit land and to dispose it of without paying his
amount and that, therefore, if any injunction suit is
filed against him with respect to the said property, he
may be given notice. There is no explanation given
by the petitioners herein in these petitions with
respect to the said admission of the defendants herein
in the said caveat petition. In fact, it was pleaded in
the written statement in question by the defendants
that after the suit was filed there was mediation and
sum of Rs. 1,00,000/- was paid to them towards
settlement. No doubt the said caveat petition was
also filed by the same advocate Sri Sunil Kumar but in
the affidavit filed in support of these two petitions, the
1
st defendant did not explain about his admissions in
the said caveat petition with respect to the suit
schedule properties in favour of the plaintiff society.
17. The learned counsel for the 1st
defendant-plaintiff Society relying upon the decisions
in MODI SPINNING AND WEAVING MILLS COMPANY
LIMITED AND ANOTHER VS. M/S LADHA RAM AND
COMPANY (AIR 1977 Supreme Court 680), B.K.
NARAYANA PILLAI AND PARAMESWARAN PILLAI AND
ANOTHER (2000) 1 Supreme Court Cases 712) and
HEERALAL AND KALYAN MALAND AND OTHERS (1998)
1 Supreme Court Cases 278) contended that any
amendment introducing entirely different new case
and seeking to displace the plaintiff the benefit
completed from the admission made by the
defendants in the written statement, is not
permissible. In the decision in MODI SPINNING AND
WEAVING MILLS COMPANY LIMITED VS. M/S LADHA
RAM AND COMPANY (AIR 1988 Supreme Court 680) by
means of an amendment the defendant wanted to
introduce an entirely different case. In the facts and
said circumstances, it was held that the defendants
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cannot be allowed to change completely the case
made out in their written statement and to substitute
an entirely different new case and that if such
amendments are allowed the plaintiffs will be
irretrievably prejudiced by being denied the
opportunity of extracting the admission from the
defendants. In HEERALAL vs. KAYALAN MAL AND
OTHERS (1998) 1 Supreme Court Cases 278, and
HEERALAL vs. KAYALAN MAL AND OTHERS (AIR 1998
Supreme Court 618), it was held that once the written
statement contains an admission in favour of the
plaintiff, the amendment of such admission of the
defendants cannot be allowed to be withdrawn and
such withdrawal would amount to totally displacing
the case of the plaintiff which would cause him
irretrievable prejudice. In B.K. Narayana Pillai and
Parameshwaran Pillai and Another (2000) 1 Supreme
Court Cases 712, it was held though the defendant
has a right to take alternative pleas in defence by way
of amendment, it would be subject to qualification
that (i) Proposed amendment should not result in
injustice to the other side; (ii) any admission made in
favour of plaintiff should not be withdrawn; and (iii)
inconsistent and contradictory allegations which
negate admitted facts should not be raised. Under
the present petitions, the petitioners – defendants are
intending to take away the admission made by them
in regard to the suit claim of the plaintiff society. The
law is that no additional written statement should not
set up a totally new case or state facts at direct
variance with the original written statement so as to
completely change the issue in the case. This is not a
case where the defendants are intending to take
alternative pleas or that they are intending to explain
the vague pleadings made by them in their written
statement filed. This is also not a petition to file
additional written statement but as a petition to
substitute the original written statement to get over
the admissions made in favour of the plaintiff society.
There is no material placed before the court to
substantiate their affidavit. As already stated, the
documents filed are not helpful to support the
affidavit of the petitioner in regard to the allegations
made against their previous advocate so as to request
the court to permit them to file a detailed written
statement, in the place of their earlier written
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statement in which they had admitted the entire claim
of the plaintiff society. A perusal of written statement
which is sought to be substituted in the place of the
earlier written statement discloses that the
defendants plead an entire new case against the
admissions made by them in the written statement.
In view of the settled law of the Apex Court the
petitioners cannot be permitted to request the court
to strike out the earlier written statement filed by
them or to permit them to substitute a fresh written
statement in contrary to the admission made by them
in their written statement.
18. No doubt, the petitioner had filed criminal
proceedings against the said Advocate and others and
copies of those criminal proceedings are filed in this
petition. Admittedly, the said Criminal Case is
pending. Moreover, it was subsequent to the filing of
I.A. 2217/95. It is well–established principle of law
that the decisions of the Civil Courts are binding on
the criminal courts and the converse is not true (vide
decision in Karamchand vs. Union of India (AIR 1977
Supreme Court 1244). The plaintiff society is not a
party to the earlier civil proceedings, which are filed in
this petition on the behalf of the Petitioners.
Therefore, those documents, which are filed on behalf
of the petitioners – defendants are not binding on the
first respondent – plaintiff society. The revenue
records, filed are also not helpful for the petitioners in
support of their contention in this petition. Whether
the chief promoter was by the date of the agreement
was a minor as contended by the petitioners is also
not a question relevant for the purpose of this
petition. Thus, this court holds that the documents
filed on behalf of the petitioner do not advance the
claim of the petitions. For the foregoing reasons and
in view of the law enunciated by the Hon’ble Apex
Court, the petitioners–defendants cannot be permitted
to substitute the earlier written statement filed by
them in the suit whereunder there was an admission
of the suit claim of the plaintiffs society, by way of an
entirely new written statement taking contradicting
pleas. Thus this court does not find any merits in the
petitions.
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19. In the result, the petitions are dismissed but
without costs.”
16. On the basis of the findings recorded by the trial court,
defendants’ two petitions under Order VIII Rule 9 and Order VI Rule 16
CPC were dismissed holding that the defendants cannot be permitted
to substitute the earlier written statement wherein there was an
admission of the suit claim of the plaintiff-Society.
17. Aggrieved by the aforesaid order, the defendants
preferred revision petitions before the High Court. Before the High
Court, it was argued that though some admissions were made in the
written statement, the same can be withdrawn by filing a fresh
detailed written statement. Dismissing the said revision petitions,
the High Court in its order dated 18.09.2002 (pages 184 to 186 of
paperbook) observed:-
“The court below had elaborately discussed this
aspect I agree with the reasoning and finding thereof
given by the court below on this aspect and I hold that
they are perfect and valid.
Before the court below the defendant relied on
a Judgment reported in Bhikaji Keshao Joshi and
another vs. Brijlal Nadanlal Biyani and others (AIR
1955 SC 610) and contended that the court can order
striking out of the written statement and permit the
defendants to file substituted written statement with
specific pleadings. The court below rightly
distinguished the same and held that it is not
applicable.
The lower appellate court while dismissing the
I.As. relied on a judgment of the Apex Court reported
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in HEERALAL vs. KAYALAN MAL AND OTHERS (AIR
1998 SC 618), wherein it was held that once the
written statement contains an admission in favour of
the plaintiff, the amendment of such admission of the
defendants cannot be allowed to be withdrawn and
such withdrawal would amount to totally displacing
the case of the plaintiff which would cause him
irretrievable prejudice. In another decision of the
Supreme Court referred to by the Court below in B.K.
NARAYANA PILLAI vs. PARAMESHWARAN PILLAI AND
ANOTHER (2000 (1) SCC 712) it was held that though
the defendant has a right to take alternative pleas in
defence by way of amendment, it would be subject to
qualifications which are (1) proposed amendment
should not result in injustice to the other side and (2)
any admission made in favour of the plaintiff should
not be withdrawn and (3) inconsistent and
contradictory allegations which negate admitted facts
should not be raised.
In the present case the question now is
whether the admission made by the defendant in
favour of the plaintiff can be withdrawn and the
answer in the language of the apex court, is ‘not
permissible’.
As already discussed the admissions made in
the written statement are absolutely matching with
the original stand taken by the 1st defendant in the
affidavit filed to his caveat petition and also with the
pleadings and the only dispute raised is with regard to
payment of money to the defendant. In such a case, I
am of the strong view that the defendant had not
approached the court with clean hands in filing the
present I.As.
It has to be further noticed that the allegations
made against the counsel are not established so far.
Mere filing of a complaint before the police or before
the Bar Council of India, in the circumstances like the
present one would only jeopardize the decency and
dignity of the profession of the Advocate. This
attitude of making wild and baseless allegations
against the counsel has to be dissuaded by all means.
However, this observation shall not be understood as
an opinion expressed by this court on the proceedings
already initiated and pending against the said
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counsel. To put in a different way, the original stand
of the defendant as stated in the affidavit filed in
support of the caveat petition, demolishes or cuts
across the very basis for filing the present I.As. I am
of the further view that if these types of allegations
are made without substantiating them and if they are
encouraged, it would lead to a situation where
litigants with false cases would resort to smudging the
career of genuine or innocent advocates. The conduct
on the part of the defendant is palpably mischievous
and this court cannot lend any kind of support to a
litigant like the defendant, who has approached the
court with unclean hands.
It is also brought to the notice of this Court
that in another suit which is not connected with the
present suit, the defendant resorted to similar type of
allegations against another counsel, and of course the
trial court did not take into consideration those
allegations.
The court below had discussed in detail all the
aspects and dismissed the I.As. with cogent and
convincing reasons and I do not find any valid ground
to interfere with the same. Accordingly, I pass the
order as under.
The revisions petitions are dismissed with
costs.”
18. The relevant paragraphs of the orders passed by the trial
court and the High Court have been quoted hereinbefore mainly for
the reason that while considering the petitions under Order VIII Rule 9
and Order VI Rule 16 both the courts have also gone into the question
as to whether those admissions could be withdrawn by permitting the
defendants to file a fresh written statement or by striking out of the
earlier written statement.
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19. Aggrieved by the above said orders, the appellants moved
this Court in Civil Appeal No.7940-7942 of 2004. Finding no merit, this
Court dismissed the appeals by order dated 15.03.2007.
20. Instead of participating in the suit, the defendantappellants filed another petition purported to be under Order VI Rule
17 CPC seeking amendment of the written statement. The said
amendment petition was allowed by the trial court and against that
the plaintiff-Society preferred revision before the High Court. The
High Court by passing the impugned order dated 28.12.2007 allowed
the revision petitions and set aside the order passed by the trial court.
The High Court held as under :-
“15. The ratio in THE UNITED PROVINCES
ELECTRIC SUPPLY CO. LTD. case (AIR 1972 SC
1201) that decision on any particular point given in an
order of remand does not operate as res judicata in an
appeal filed against the final order passed after the
remand; does not apply to the facts of this case
because there is no ‘order of remand’ in this case as
plaintiff is not relying on any of the observations in an
‘order of remand’ to contest the applications made by
the defendants.
16. In view of the ratio in SATYADHYAN GHOSAL
case (AIR 1960 SC 941), ARJUN SINGH case (AIR
1964 SC 993) and THE UNITED PROVINCES
ELECTRIC SUPPLY CO. LTD. case (..supra)
successive applications for the same relief cannot be
permitted, and they can even be rejected as an abuse
of the process of Court.
17. It is contended by the learned counsel for the
defendants that subsequent to the filing of I.A. No.416
of 2000, defendants came to know through the report
of an expert that the written statement filed on their
behalf was typed on the same typewriter on which the
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plaint was typed. In the common order challenged in
these revisions, the trial Court considered that
contention and held that that contention has to be
decided at the time of trial, but cannot be considered
at this stage. For the reasons given by the trial court,
that finding cannot be said to be erroneous.
18. As rightly contended by the learned counsel
for the plaintiff, the trial Court which agreed with the
contention of the plaintiff that defendants cannot by
invoking the plea of fraud seek the amendment
sought, allowed the petitions only on the basis of the
observations made in UDAY SHANKAR TRIYAR V.
RAM KALEWAR PRASAD SINGH AIR 2006 SC 269.
In the very same judgment the apex Court held that
procedure, a hand maiden to justice, should never be
made a tool to carry justice or perpetuate injustice by
any oppressive or punitive use. The trial Court
without keeping in view the fact the defendants
cannot repeatedly file the petition for the same relief
which was negatived earlier, in a different form by
quoting different provisions of law, thought it fit to
allow the petitions and thereby virtually set at naught
the order of dismissal of I.A.Nos.415 and 416 of 2000
passed by it earlier which order was confirmed by this
Court and the Apex Court also.”
21. Before going into the merits of the case, we would like to
refer two of the provisions viz. Order VI Rule 16 and Order VI Rule 17
CPC which are involved in the instant case. These two provisions read
as under:-
“16. Striking out pleadings— The Court may at
any stage of the proceedings order to be struck out
or amended any matter in any pleading—
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(a) which may be unnecessary, scandalous, frivolous
or vexatious, or
(b) which may tend to prejudice, embarrass or delay
the fair trail of the suit, or
(c) which is otherwise an abuse of the process of the
Court.]
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.”
22. Order VI Rule 16 CPC has been substituted by the CPC
(Amendment) Act, 1976. This provision deals with the amendment or
striking out of the pleadings, which a party desires to be made in his
opponent’s pleadings. In other words, the plaintiff or the defendant
may ask the court for striking out pleadings of his opponent on the
ground that the pleadings are shown to be unnecessary, scandalous,
frivolous or vexatious. This Rule is based on the principle of ex debito
justitia. The court is empowered under this Rule to strike out any
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matter in the pleadings that appears to be unnecessary, scandalous,
frivolous or vexatious or which tends to prejudice, embarrass or delay
the fair trial of the suit.
23. On the other hand, Order VI Rule 17 CPC empowers the court
to allow either party to alter or amend his own pleading and on such
application the court may allow the parties to amend their pleadings
subject to certain conditions enumerated in the said Rule.
24. 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 defendantappellants 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
2Page 21
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.
25. After giving our full consideration on the matter, we do not
find any error in the impugned order passed by the High Court. Hence,
these appeals have no merit and are accordingly dismissed. No order
as to costs.
…………………………………….J.
(P. Sathasivam )
2Page 22
……………………………………J.
(M.Y. Eqbal)
New Delhi,
April 18, 2013.
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