Supreme Court of India
SUMESH SINGHversusPHOOLAN DEVI & ORS.
- Citation
- 2009 INSC 533
- Decided
- 15 April 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
Amendment of the written statement was permissible as the proviso to Order VI Rule 17 does not apply to suits filed before 1 July 2002 and no categorical admission was made in the plaint.
Summary
The plaintiff, Babu, owned suit land and filed a suit to set aside a deed of sale executed under a purported Power of Attorney. The plaintiff died during the suit and his heirs were brought on record. An amendment to the plaint was allowed in 2004. Subsequently, the eighth respondent (an heir and legal representative) filed an amendment to her written statement under Order VI Rule 17, which the trial court permitted. The plaintiff filed a revision petition, but the High Court dismissed it, holding that because the amendment of the plaint was not challenged, the defendants were entitled to amend their written statements. The Supreme Court examined whether the amendment was permissible, considering the proviso added to Order VI Rule 17 by the 2002 amendment to the CPC, which applies only to suits filed after 1 July 2002, and whether the amendment amounted to resiling from a prior admission. The Court found no categorical admission in the plaint, held that the proviso did not apply to a suit filed in 1999, and therefore allowed the amendment of the written statement. The appeal was dismissed.
Issues considered
- Whether amendment of a written statement under Order VI Rule 17 is permissible when the plaint has been amended and the suit was filed before the 2002 amendment to the CPC.
- Whether the amendment is barred by the principle that a party cannot resile from a prior admission made in the same proceedings.
Legislation cited
- Code of Civil Procedure, 1908s. Order VIII Rule 3, s. Order VIII Rule 5, s. Order VI Rule 17
- Code of Civil Procedure (Amendment) Act, 2002s. Section 16(2)(b)
Subjects
amendment of pleadingswritten statementOrder VI Rule 17CPC amendment 2002resiling from admissioncivil procedurerevision petition
Judgment
[2009] 5 S.C.R. 996
A SUMESH SINGH
v.
PHOOLAN DEVI & ORS.
(Civil Appeal No. 2537 of 2009)
APRIL 15, 2009
B
[S.B. SINHA AND P. SATHASIVAM, JJ.]
Code of Civil Procedure, 1908: Order 6 r. 17 -
Amendment of pleadings - Permissibility of - Held: Not
C permissible when party to the suit seeks to resile from his
statement made in earlier part of proceedings - On facts,
amendment of plaint allowed by trial Court, which was not
challenged - Application for amendment of written statement
allowed - Revision petition by plaintiff - Dismissed - On
o appeal, Held: High Court did not err in holding that defendant
had right to file amended written statement to the amended
plaint.
Pending suit, plaintiff filed an application for
amendment of plaint which was allowed. Thereafter,
E respondent-defendant filed an application for amendment
of written statement which was allowed. Appellant filed
revision petition before High Court which was dismissed
holding that as the application for amendment filed by the
plaintiff was allowed which was not challenged, the < f
F defendants had a right to file an amended written
statement to the amended plaint. It was also observed
that the sit_id right to file amended written statement to the
amended plaint is independent of any right which might
accrue to the respondent to file an amended statement
G pursuant to the permission granted to do so in an
application seeking amendment of the written statement.
Henc;e the present appeal.
Dismissing the appeal, the Court
H 996
SUMESH SINGH v. PHOOLAN DEVI & ORS. 997
--+
HELD:1. It is true that ordinarily, an amendment of A
pleadings should not be allowed by reason whereof a
party to the suit would resile from the admission made
by him in the same proceedings at an earlier stage. In this
case, however, the averments made in the plaint were
merely been denied. There was no categorical or B
unequivocal admission as such. It was, thus, not a case
where a party to the suit is resiling from his statement
made in the earlier part of the proceedings. The trial
Court, in a case of this nature, had not or could not have
taken recourse to the provisions of Order VIII Rule 3 and c
Order VIII Rule 5 CPC. An issue was framed by and
between the plaintiff and the contesting defendant. The
said issue was required to be determined and parties
were required to adduce evidence thereupon. [Paras 9
and 10j [1003-F; 1004-B, CJ D
Gautam Sarup v. Leela Jetty & Ors. (2008) 7 SCC 85,
relied on.
2. The proviso appended to Order VI, Rule 17 CPC,
was added by Act 22 of 2002 w.e.f 1.7.2002. By reason of E
Section 16(2)(b) of the Code of Civil Procedure
(Amendment) Act, 2002, the amendments carried out
therein would only apply in respect of the suits which
were filed thereafter. As the suit was filed in the year 1999,
the proviso appended to Order VI, Rule 17 would not F
apply. [Paras 11 and 12) [1004-D; 1004-F]
State Bank of Hyderabad v. Town Municipal Council
(2007) 1 sec 765, relied on.
3. In the peculiar facts and circumstances of this G
case, no useful purpose would be served in interfering
~
with the impugned judgment at this stage particularly
having regard to the observations made by the High
Court. [Para 13) [1004-G]
H
998 SUPREME COURT REPORTS (2009) 5 S.C.R.
A Case Law Reference:
(2008) 7 sec 85 relied on Page 8
(2007) 1 sec 765 relied on Page 9
8 CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2537 of 2009.
From the Judgment & Order dated 24.10.2007 of the High
Court of Himachal Pradesh at Shimla in C.M.P. No.19 of 2006.
c P.S. Rana and Devendra Singh for the Appellant.
Not represented for the Respondents.
The Judgment of the Court was delivered by
D 5.8. SINHA, J. 1. Leave granted. "
2. The defendant in a suit praying for a decree to set aside
a deed of sale purported to have been executed by the 8th
respondent (original defendant No.2) as a Power of Attorney
E holder of the original plaintiff (her father), is before us aggrieved
by and dissatisfied with a judgment and order dated
24.10.2007 passed by the High Court of Himachal Pradesh at
Shimla dismissing a revision application filed before it from an
order dated 20.12.2005 of the learned trial judge allowing an
F application for amendment of the written statement filed by the
8th respondent.
3. The following facts are not disputed :
The original plaintiff Sh. Babu was the owner of the suit
G land. He executed a Power of Attorney on or about 13.2.1998
in favour of one Kartari Devi - Respondent No.8 (original
defendant No.2).The 8th respondent executed a deed of sale
on 3.3.1998 in favour of the original defendant No.1 in the
aforementioned capacity. However, inter alia, on the premise
H that the said Power of Attorney was illegal and the same had
SUMESH SINGH v. PHOOLAN DEVI & ORS. 999
ct [S.B. SINHA, J.]
been fraudulently obtained, original plaintiff filed a suit for A
declaration before the Subordinate Judge, First Flass, Amb,
=-·
District Una in the State of Himachal Pradesh.
Indisputably, relying on or on the basis of the S(!id deed of
sale, the appellant filed an application for partition before the B
Revenue Court of the Tehsildar which was decided in his favour.
Possession of the land in question is said to have been handed
over by the Revenue Officer. Appellant's name was also entered
in the Revenue Records. On or about 3.5.2000, the 8th
respondent filed a written statement raising various pleas that
the suit of the plaintiff be dismissed.
c
In her written statement, the 8th respondent stated as
under:
"6. That after plaintiff waited the summons of partition case D
and enquired from the defendant No.1 but the defendant
No.1 lingered on the matter and in the month of Jan 1999
started extended threats and proclaimed that the suit land
has been sold to him by defendant No.2. The plaintiff was
astonished and approached the Halqua Patwari. The
E
Patwari Halqua who is also hand in glubs with the
defendant No.1 did not co-operated nor provided the
•
particulars till June 99 and after obtaining the certified
copies it has transpired that the defendant No.1 got
manufactured a power of attorney of plaintiff alleged to be
- > executed on 13.02.98 Regd. No.41, Sub-Registrar Amb F
in favour of defendant No.2. At any rate even if any such
power of attorney is proved to be bearing signatures of
plaintiff, the plaintiff never give any power of attorney
consciously to sell or alienate his property to defendant
No.2 and the power to the contrary in the alleged power G
of attorney was got entered as a result of fraud, mis-
j representation taking advantage of old age, sickness,
illiteracy of plaintiff and defendant No.2, physical and
mental weakness and in breach of trust and confidence
reposed in the defendants. Actually, the intention of H
1000 SUPREME COURT REPORTS [2009] 5 S.C.R.
.,.
A defendant No.1 in active connivance with Halqa Patwari
Revenues Officer and marginal witness was to pilfer away
the property of plaintiff. The plaintiff did not sell any property
or never agreed to execute sale deed qua the suit land to
-
defendant No.1 nor ever received any consideration. The
B allegedly sale deed No.202 dated 03.03.1998 alleged to
be executed by defendant No.2 is contrary as attorney of
plaintiff are and further entries got repeated by defendant
No.1 in his favour of back of plaintiffs are bogus, fabricated
documents result of fraud, mis-representation, undue
c influence without consideration without delivery of
possession, in breach of trust and confidence reposed in
defendants. Moreover, the plaintiff had no necessity to sell
the proper1y and was incompetent to sell being landless
person having meager holding.
D xxx xxx xxx
12. It is, therefore, prayed that decree for declaration to
the effect that land measuring 0- 07-14 Hects being half
share out of land measuring 0-14-28 Hects as fully
E detailed in the head note of plaintiff as owned and
possessed by the plaintiff. The defendants have no right,
title or interests in the same. The alleged power of attorney
Regd. No.41 dated 13.02.1998 is illegal, result of
misrepresentation, fraud, breach of trust and confidence
F reposed on defendants, taking advantage of old age,
sickness, physical mental weakness, illiteracy of plaintiff
and does not in any (sic) give right to defendant No.2 to
~
-
deal with andalenate the properties of plaintiff and further
alleged sale deed No.202 dated 3.3.1998 alleged to have
executed by defendant No.2 in favour of defendant No.1
G
in respect of suit land and subsequent entries in favour of
defendant No.1 in the revenue record are wrong, illegal,
void, baseless, contrary to factual position without ·'
consideration, without delivery of possession and in
breach of trust and confidences reposed on defendants
H
-{
,
SUMESH SINGH v. PHOOLAN DEVI & ORS. 1001
.
~
~ [S.B. SINHA, J.]
and result of fraud, undue, influence, mis-representation A
;. fictitious and fabricated one. The some gets have not
binding effect on the right, title or interest of plaintiff in the
suit land and for issuance of permanent injunction as a
consequential relief restraining the defendants from
interfering in any manner whatsoever raising any B
> constructed, taking forcible possession, cutting and
removing trees, taking the suit land, in any manner may
please be passed in favour of plaintiff and against the
defendant with cost. In the alternative decree for
possession of suit land may kindly be passed in favour of c
plaintiff and against defendant No.1 with cost and any other
further relief to which plaintiff is found entitled in the
i circumstances of the case may also be awarded in favour
of plaintiff with cost."
4. The original plaintiff died during the pendency of the D
said suit. The respondent Nos.1 to 7, being the legal heirs of
the original plaintiff, filed an application for bringing on record
the legal representatives which was allowed. It is stated that the
evidence in the suit stands also concluded.
E
In 2004, an application for amendment of the plaint was
filed which was allowed. On or about 13.5.2005, the 8th
· respondent also filed an application purported to be under
Order VI Rule 17 of the Code of Civil Procedure. The said
application was allowed by the learned trial judge by an order F
" dated 20.12.2005, inter alia, opining :
"6. In addition to it, plaintiff has since deceased and
defendant No.2 being daughter of plaintiff also claims
herself to be Lrs. of deceased plaintiff. She, therefore, also
wants to insert prayer to the effect that suit be decreed in G
favour of deceased plaintiff through Lrs. and defendant
No.2. The aforesaid amendment even if allowed would not
change the position since there .is specific issue which was
framed as issue No.1 i.e. if power of attorney dated
23.2.1998 allegedly executed by plaintiff in favour of H
1002 SUPREME COURT REPORTS [2009) 5 S.C.R.
A defendant No.2 is result of misrepresentation and fraud.
The plaintiff has to affirmatively prove the allegations of
fraud and misrepresentation. However, at the same time
if stand being taken by defendant No.2 is allowed to be
incorporated in the pleadings, it will also give a fair chance
B even to defendant No.1 to justify his position and
effectively defend the case coming against him. Hence,
narration of facts disclosed in application as a whole are
such where rejection of application is unjust and
unreasonable whereas if pleadings sought to be
c incorporated by defendant No.2 are allowed to be
introduc.ed in the pleadings that it will also give fair chance
to defendant No.1 to defend the case. Hence, this
application of defendant No.2 is allowed. Amended written l~
statement is already on record. It be tagged with case
filed."
D
5. Appellant filed a revision petition thereagainst before the
High Court which by reason of the impugned order has been
dismissed opining that as the application for amendment filed
by the plaintiff was allowed by an order dated 20.12.2005 which
E having not been challenged; the defendants had a right to file
an amended written statement to the amended plaint. It was
observed that the said right to file amended written statement
to the amended plaint is independent of any right which might
accrue to the respondent to file an amended statement pursuant
F to the permission granted to do so in an application seeking ~
amendment of the written statement.
6. Mr. P.S. Rana, learned counsel appearing on behalf of
the appellant, would submit that keeping in view the stand taken
by the 8th respondent in her original written statement in terms
G
whereof she prayed for dismissal of the suit, again at a later
stage, should not have been permitted to turn round and take
a plea that the suit filed by her father should be decreed. It is -~
not in dispute that the 8th respondent is one of the heirs and
legal representatives of the original plaintiff. On the death of the
H
~ SUMESH SINGH v. PHOOLAN DEVI & ORS. 1003
[S.B. SINHA, J.]
-'f
~
original plaintiff, his legal representatives were brought on A
record. Certain subsequent events occurred. Amendment of the
- plaint was carried out by an order dated 20.12.2005. The
correctness of the said order was not in question.
7. The 8th respondent along with the other heirs and legal
> B
representatives of the original plaintiff claimed to be in
possession of the property.
8. It is pursuant to the liberty granted that application for
amendment in the written statement was allowed. The learned
Trial Judge while passing its order dated 20.12.2005 opined c
that the 8th respondent never admitted that she had sold the
suit land on the basis of the purported Power of Attorney of
•, plaintiff. It was held :
~
"During the pendency of suit, application has been filed by D
. defendant No.2 alleging that the she never sold suit land
nor even received any consideration. According to her,
plaintiff never gave or executed any power of attorney
dated 13.2.1998 in her favour. She further alleges that she
never went to sub-Registrar in connection with power of .
E
attorney dated 13.2.1998 or sale deed dated 3.3.1998.
She claims to be an illiterate lady. These facts are,
therefore, sought to be incorporated in written statement."
,I 9. It is true that ordinarily, an amendment of pleadings
should not be allowed by reason whereof a party to the suit F
would resile from the admission made by him in the same
proceedings at an earlier stage. This aspect of the matter has
been considered in Gautam Sarup v. Leela Jetty & Ors.
((2008) 7 sec 85] wherein it was held :
G
"28. What, therefore, emerges from the discussions made
hereinbefore is that a categorical admission cannot be
resiled from but, in a given case, it may be explained or
clarified. Offering explanation in regard to an admission
or explaining away the same, however, would depend upon H
1004 SUPREME COURT REPORTS (2009) 5 S.C.R.
A the nature and character thereof. It may be that a defendant
is entitled to take an alternative plea. Such alternative
pleas, however, cannot be mutually destructive of each
other."
10. In this case, however, the averments made in the plaint
8
have merely been denied. There is no categorical or
unequivocal admission as such. It is, thus, not a case where a
party to the suit is resiling from his statement made in the earlier
part of the proceedings. The learned trial Judge, in a case of
this nature, had not or could not have taken recourse to the
C provisions of Order VIII Rule 3 and Order VI II Rule 5 of the Code
of Civil Procedure. An issue has been framed by and between
the plaintiff and the contesting defendant. The said issue is
required to be determined. Parties are required to adduce
evidence thereupon.
D
11. Mr. Rana would submit that having regard to the
proviso appended to Order VI, Rule 17 of the Code of Civil
Procedure, the amendment could not have been allowed. The
said proviso has been added by Act 22 of 2002 w.e.f 1.7.2002.
E 12. By reason of Section 16(2)(b) of the Code of Civil
Procedure (Amendment) Act, 2002, the amendments carried
out therein shall only apply to in respect of the suits which were
filed thereafter. {See State Bank of Hyderabad v. Town
Municipal Council ((2007) 1 SCC 765)}. As the suit had been
F filed in the year 1999, the proviso appended to Order VI, Rule
17 shall not apply.
13. In the peculiar facts and circumstances of this case,
we do not think that any useful purpose would be served in
G interfering with the impugned judgment at this stage particularly
naving regard to the observations made by the High Court. The
appeal, therefore, is dismissed without any order as to costs.
D.G. Appeal dismissed.
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