Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1808 OF 2008
(Arising out of SLP (C) No.18511 of 2006)
Gautam Sarup … Appellant
Versus
Leela Jetly & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. One Shanti Sarup executed a Will. Respondents 1, 2, 3 and 6 are his
daughters. Respondent No.7 Ritu Sarup is the daughter of Respondent
No.2. She had an accidental fall and became handicapped.
3. The Will was executed on or about 23.9.1999 bequeathing his
properties in equal shares to the appellant and the said Ritu Sarup.
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4. Appellant filed a suit in the Court of Civil Judge (Senior Division),
Ludhiana, inter alia, for declaration of his title to the suit properties and for
a decree of permanent injunction.
Respondent No.6 Leela Jetlley, on being served with the summons
appeared through one Shri M.P. Vasudeva, Advocate. She filed a written
statement admitting the averments made in the plaint.
5. A counter claim was filed by Respondent Nos.1 to 5. In their written
statement, they did not deny or dispute execution of the Will by Shanti
Sarup.
6. Respondent No.6, however, filed another written statement denying
and disputing the claim of the appellants in toto. She also filed an
application on 28.8.2000 for permission to take the first written statement
off the records and to file another written statement on the premise that she
had not engaged the said M.P. Vasudeva, nor had she filed any written
statement through him. She denied and disputed her signatures appearing
on the said written statement. The said application was allowed by the
learned Trial Judge.
7. A revision petition was filed by the appellant thereagainst. By a
judgment and order dated 15.3.2002, the High Court, while setting aside the
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said order of the learned Trial Judge dated 12.9.2001 directed it to hold an
enquiry at the first instance as to whether the respondent No.6 ever engaged
Mr. Vasudeva, Advocate or ever signed the written statement which had
been placed on record. It was directed that in the event the findings of the
said enquiry go in her favour, it will be open to her to file the second written
statement or the one which has been filed by her may be accepted. It was,
however, observed :
“Of course, I am not depriving Smt. Jetly to file an
application under Order VI Rule 17 CPC in case
the findings are given against Smt. Leela Jetly
regarding filing of earlier statement.”
8. Pursuant to or in furtherance of the said direction, an enquiry was
held and it was opined that respondent No.6 had, in fact, appointed the said
Shri Vasudeva as her lawyer and filed her written statement on 30.3.2000.
A revision application was filed thereagainst by the respondent No.6 which
by reason of an order dated 7.4.2004, was dismissed by the High Court.
9. An application for amendment was thereafter filed by her on
5.11.2004 which was allowed by the learned Trial Court by an order dated
23.2.2005. Appellant moved the High Court invoking its revisional
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jurisdiction and by reason of the impugned judgment the same was
dismissed opining :
“Thus, I am of the opinion that the plaintiff is not
prejudiced in any manner while allowing
defendant No.6 to amend the written statement.
The burden of proving the Will is to be discharged
by the plaintiff in any case. Whether admissions
contained in the written statement dated 30.3.2000
were relevant for proof of Will or such admissions
were made erroneously or under mistaken belief or
misrepresentation or such admissions are
conclusive, are the questions which can be decided
only after defendant No.6 is permitted to amend
the written statement. It is a disputed question of
fact which cannot be decided at the stage of
deciding the application for amendment of written
statement whether admissions in the written
statement dated 30.3.2000 are conclusive and
binding on defendant No.6 and to what extent.”
10. Mr. Sudhir Chandra, learned senior counsel appearing on behalf of
the appellant, would submit :
1. Respondent No.6, in view of admissions contained in her written
statement filed on 30.3.2000 , could not have been permitted to resile
therefrom.
2. She, having failed in her attempt to set up a plea that she had not
engaged Shri Vasudeva as a lawyer and did not put her signature on
the written statement, should not have been permitted to amend the
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written statement, in view of the fact that she was an attesting witness
to the Will and claimed a benefit thereunder.
11. Mr. M.L. Verma, learned senior counsel appearing on behalf of
Respondent No.6, on the other hand, submitted
(a) Admission being an evidence against a person making the same, the
onus would be on him to show that it was made under some mistake
or otherwise and, thus, the amendment of written statement is
permissible in law.
(b) Apart from Respondent No.6, six other defendants had denied or
disputed the correctness of the Will pursuant whereto an issue was
framed and as such the question as to whether she made any
admission in her first written statement or not is wholly academic.
(c) Although a person making admission should not ordinarily be
permitted to resile therefrom, there does not exist any bar to explain
such admission or clarify the same and in that view of the matter such
portion of the application for amendment of written statement, which
seeks to explain the admission and/or clarify the same should be
permitted to be retained.
12. Order VI Rule 17 of the Code of Civil Procedure reads, thus :
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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 is
spite of due diligence, the party could not have
raised the matter before the commencement of
trial.”
13. An admission made in a pleading is not to be treated in the same
manner as an admission in a document. An admission made by a party to
the lis is admissible against him proprio vigore.
14. In State of Haryana & Ors. v. M.P. Mohla [(2007) 1 SCC 457] this
Court stated :
“ 25. The law as regards the effect of an admission
is also no longer res integra. Whereas a party may
not be permitted to resile from his admission at a
subsequent stage of the same proceedings, it is
also trite that an admission made contrary to law
shall not be binding on the State.”
15. A thing admitted in view of Section 58 of the Indian Evidence Act
need not be proved. Order VIII Rule 5 of the Code of Civil Procedure
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provides that even a vague or evasive denial may be treated to be an
admission in which event the court may pass a decree in favour of the
plaintiff. Relying on or on the basis thereof a suit, having regard to the
provisions of Order XII Rule 6 of the Code of Civil Procedure may also be
decreed on admission. It is one thing to say that without resiling from an
admission, it would be permissible to explain under what circumstances the
same had been made or it was made under a mistaken belief or to clarify
one’s stand inter alia in regard to the extent or effect of such admission, but
it is another thing to say that a person can be permitted to totally resile
therefrom.
The decisions of this Court unfortunately in this regard had not been
uniform. We would notice a few of them.
16. A Three Judge Bench of this Court speaking through Ray, CJ in Modi
Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co. [(1976) 4
SCC 320] opined :
“ 10. It is true that inconsistent pleas can be made
in pleadings but the effect of substitution of paras
25 and 26 is not making inconsistent and
alternative pleadings but it is seeking to displace
the plaintiff completely from the admissions made
by the defendants in the written statement. If such
amendments are allowed the plaintiff will be
irretrievably prejudiced by being denied the
opportunity of extracting the admission from the
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defendants. The High Court rightly rejected the
application for amendment and agreed with the
trial court.”
17. A Two Judge Bench of this Court, without noticing the binding
precedent in Modi Spinning (supra), in Panchdeo Rarain Srivastava v. Km.
Jyoti Sahay & Anr. [1984 Supp. SCC 594], stated :
“But the learned counsel for the respondents
contended that by the device of amendment a very
important admission is being withdrawn. An
admission made by a party may be withdrawn or
may be explained away. Therefore, it cannot be
said that by amendment an admission of fact
cannot be withdrawn.”
Yet again, in Akshaya Restaurant v. P. Anjanappa & Anr. [1995
Supp.(2) SCC 303], the following observations were made by the Court :
“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 para 6 of the written
statement a definite stand was taken by
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 CPC in permitting amendment of the written
statement.”
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[See also Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary [1995
Supp. (3) 179]
18. The question came up for consideration before another Division
Bench in Heeralal v. Kalyan Mal & Ors. [(1998) 1 SCC 278], wherein
noticing the aforementioned decisions, Modi spinning’s decision was
followed. Akshaya Restaurant (supra) was held to have been rendered per
incuriam.
Other decisions which were cited at the Bar were distinguished
stating:
“ 10. Consequently it must be held that when the
amendment sought in the written statement was of
such a nature as to displace the plaintiff’s case it
could not be allowed as ruled by a three-member
Bench of this Court. This aspect was unfortunately
not considered by the latter Bench of two learned
Judges and to the extent to which the latter
decision took a contrary view qua such admission
in written statement, it must be held that it was per
incuriam being rendered without being given an
opportunity to consider the binding decision of a
three-member Bench of this Court taking a
diametrically opposite view.
11. We were then taken to another decision of this
Court in the case of Panchdeo Narain Srivastava
v. Jyoti Sahay . In that case the plaintiff was held
entitled to amend his plaint by submitting that
though earlier he stated that the defendant was
uterine brother, the plaintiff by amendment in his
plaint could submit that the defendant was his
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brother and the word “uterine” could be dropped.
Even in that case the main case put forward by the
plaintiff did not get changed as the plaintiff
wanted to submit that the defendant was his
brother. Whether he was uterine brother or real
brother was a question of degree and depended on
the nature of evidence that may be led before the
Court. Therefore, the deletion of the word
“uterine” was not found to be displacing the
earlier case of the plaintiff. On the facts of the
present case also, therefore, the said decision
cannot be of any assistance to the learned counsel
for the respondents.
12. In our view, therefore, on the facts of this case
and as discussed earlier, no case was made out by
the respondents, contesting defendants, for
amending the written statement and thus
attempting to go behind their admission regarding
5 out of 7 remaining items out of 10 listed
properties in Schedule A of the plaint.”
19. Hiralal (supra) has been recently noticed by this Court in
Sangramsinh P. Gaekwar & Ors. v. Shantadevi P. Gaekwad (Dead) through
LRs. & Ors. [(2005) 11 SCC 314], wherein it is stated :
“215. Admissions made by Respondent 1 were
admissible against her proprio vigore.
216. In Nagindas Ramdas v. Dalpatram Ichharam
this Court held :
“... Admissions if true and clear, are by far
the best proof of the facts admitted.
Admissions in pleadings or judicial
admissions, admissible under Section 58 of
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the Evidence Act, made by the parties or
their agents at or before the hearing of the
case, stand on a higher footing than
evidentiary admissions. The former class of
admissions are fully binding on the party
that makes them and constitute a waiver of
proof. They by themselves can be made the
foundation of the rights of the parties. On
the ot her hand, evidentiary admissions
which are receivable at the trial as evidence,
are by themselves, not conclusive. They can
be shown to be wrong.”
(See also Bishwanath Prasad v. Dwarka Prasad .)
217. In Viswalakshmi Sasidharan v. Branch
Manager, Syndicate Bank this Court held :
“On the other hand, it is admitted that due to
slump in the market they could not sell the
goods, realise the price of the finished
product and pay back the loan to the Bank.
That admission stands in their way to plead
at the later stage that they suffered loss on
account of the deficiency in service.”
218. Judicial admissions by themselves can be
made the foundations of the rights of the parties.”
Modi spinning (supra) and Hiralal (supra) were followed therein.
Yet again in Union of India v. Pramod Gupta (Dead) by LRs. & Ors.
[(2005) 12 SCC 1] this Court held :
“Before an amendment can be carried out in terms
of Order 6 Rule 17 of the Code of Civil Procedure
the court is required to apply its mind on several
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factors including viz. whether by reason of such
amendment the claimant intends to resile from an
express admission made by him. In such an event
the application for amendment may not be
allowed. (See Modi Spg. & Wvg. Mills Co. Ltd. v.
Ladha Ram & Co. , Heeralal v. Kalyan Mal and
Sangramsinh P. Gaekwad v. Shantadevi P.
Gaekwad )”
20. We may, at this stage, notice some decisions of this Court whereupon
strong reliance has been placed by Mr. Verma.
In Punjab National Bank v. Indian Bank & Anr. [(2003) 6 SCC 79],
this Court opined that an application for amendment may be allowed to
clarify the relief which had been prayed for even in the plaint, particularly,
when no prejudice in this behalf would be caused to the other party to the
lis.
In Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors. [(2006) 4
SCC 385], while emphasizing on the underlined principles of Order VI Rule
17 of the Code of Civil Procedure, it was held :
“15. The object of the rule is that the courts should
try the merits of the case that come before them
and should, consequently, allow all amendments
that may be necessary for determining the real
question in controversy between the parties
provided it does not cause injustice or prejudice to
the other side.
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16. Order 6 Rule 17 consists of two parts. Whereas
the first part is discretionary (may) and leaves it to
the court to order amendment of pleading. The
second part is imperative (shall) and enjoins the
court to allow all amendments which are necessary
for the purpose of determining the real question in
controversy between the parties.
17. In our view, since the cause of action arose
during the pendency of the suit, proposed
amendment ought to have been granted because
the basic structure of the suit has not changed and
that there was merely change in the nature of relief
claimed. We fail to understand if it is permissible
for the appellants to file an independent suit, why
the same relief which could be prayed for in the
new suit cannot be permitted to be incorporated in
the pending suit.
XXX XXX XXX
20. … The court always gives leave to amend the
pleadings of a party unless it is satisfied that the
party applying was acting mala fide. There is a
plethora of precedents pertaining to the grant or
refusal of permission for amendment of pleadings.
The various decisions rendered by this Court and
the proposition laid down therein are widely
known. This Court has consistently held that the
amendment to pleading should be liberally
allowed since procedural obstacles ought not to
impede the dispensation of justice.”
These decisions for the reasons stated supra are not applicable in the
instant case.
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21. Recently, in Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami
& Ors. [(2007) 5 SCC 602], this Court observed :
“ 26. Therefore, it was neither a case of withdrawal
of admission made in the written statement nor a
case of washing out admission made by the
appellant in the written statement. As noted herein
earlier, by such amendment the appellant had kept
the admissions intact and only added certain
additional facts which need to be proved by the
plaintiff and Defendants 2 to 8 to get shares in the
suit properties alleged to have been admitted by
the appellants in their written statement.
Accordingly, we are of the view that the appellants
are only raising an issue regarding the legitimacy
of the plaintiff and Defendants 3 to 7 to inherit the
suit properties as heirs and legal representatives of
the deceased Appasao. Therefore, it must be held
that in view of our discussions made hereinabove,
the High Court was not justified in reversing the
order of the trial court and rejecting the
application for amendment of the written
statement.”
22. 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 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.
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23. An explanation can be offered provided there is any scope therefor.
A clarification may be made where the same is needed.
We will assume that despite the amendments made by the Code of
Civil Procedure (Amendment) Act, 1976, amendment of pleadings being
procedural in nature, the same should be liberally granted but as in all other
cases while exercising discretion by a the court of law, the same shall be
done judiciously.
24. In this case, respondent No.6 accepted the case of the appellant in its
entirety. It went to the extent of accepting the plea of the appellant that his
suit, claiming half share in the property left by his father, may be decreed.
Each and every contention of the plaintiff-appellant was accepted by
respondent No.6. The only explanation which could be offered by her was
that the purported admission had been taken from her by playing fraud on
her and she, therefore, was not bound thereby.
25. If, she had not engaged Shri Vasudeva as her advocate or had not put
her signature on the written statement, the purported contention contained in
her written statement filed on 30.3.2000 might not constitute ‘admission’ in
the eyes of law. In such a situation, in law, she must be held to have not
filed any written statement at all. It was bound to be taken off the records
and substituted by a written statement which was properly and legally filed.
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Such a contention raised on the part of respondent No.6 having been
rejected by the learned Trial Judge as also by the High Court, in our
opinion, the submission of Mr. Verma that she should be permitted to
explain her admissions does not and cannot arise.
26. We are herein concerned with her right to maintain an application for
an amendment of the written statement when her second written statement
has not been accepted. Submission of Mr. Verma that in any event other
respondents having denied and disputed the genuineness of the Will and an
issue in that behalf having been framed, the appellant in no way shall be
prejudiced if the amendment of the written statement be allowed, cannot be
accepted. In support of the said contention, strong reliance has been placed
by Mr. Verma on Dondapati Narayana Reddy v. Duggireddy
Venkatanarayana Reddy & Ors. [(2001) 8 SCC 115]. This Court therein
was concerned with filing of additional written statement. This Court
therein was not concerned with a case where a party to the suit was resiling
from the admissions made by him earlier. In that case, the plaintiff was
rd
claiming title of 1/3 share in the property. During the pendency of the suit,
permission was sought for adducing additional evidence to prove the
testamentary succession by producing the registered Will dated 20.8.1984.
The said application was allowed. A revision application filed thereagainst
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was also allowed. The first defendant, as a retaliatory measure, sought for
an amendment questioning the legality of said Will dated 20.8.1994 which
was dismissed. The revision application filed thereagainst as also the
application for adduction of additional evidence filed by defendant No.1
was disposed of by an order impugned before this Court. It were in the
aforementioned fact situation, it was Court observed :
“9. Rules governing pleadings and leading of
evidence have been incorporated to advance the
interests of justice and to avoid multiplicity of
litigation. If the claim of the plaintiff Dondapati
Narayana Reddy is based upon the will dated 20-
8-1994 executed by Dondapati Tirumala
Ramareddy, the defendant-appellant has a right to
seek the amendment of his written statement
incorporating the plea sought to be introduced by
way of proposed amendment. Such a prayer cannot
be denied on hypertechnical grounds. The
amendment should, generally, be allowed unless it
is shown that permitting the amendment would be
unjust and result in prejudice against the opposite
side which cannot be compensated by costs or
would deprive him of a right which has accrued to
him with the lapse of time. Amendment may also
be refused, if such a prayer made separately, is
shown to be barred by time. Neither the trial court
nor the High Court has found the existence of any
of the circumstances justifying the rejection of the
prayer for amendment of the written statement.
Whether or not the amendment is allowed, the trial
court is otherwise obliged to decide the validity of
the disputed will which is the basis of the suit filed
by the plaintiff. We are of the opinion that the
courts below were not justified in rejecting the
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prayer of the defendant seeking amendment of his
written statement.
10. In view of the fact that the validity of the will
was sought to be challenged by way of
amendment, the plaintiff acquired a right to lead
evidence to prove its authenticity. Otherwise also
when the basis of the suit was the will dated 20-8-
1994, the interests of justice demanded that the
plaintiff should have been allowed an opportunity
to lead additional evidence to prove its validity. ”
The said decision, therefore, is not applicable to the facts and
circumstances of the present case.
27. It may be true that even in this case, the Trial Court was bound to
determine the issue in regard to the validity of the Will dated 23.9.1999, but
such an issue has not been and cannot be raised at the instance of
respondent No.6. The decision, therefore, cannot have any application in
the instant case.
28. We, therefore, are of the opinion that in the facts and circumstances
of the case, the impugned judgment cannot be sustained. It is set aside
accordingly. The Appeal is allowed with no order as to costs.
……………..…………J.
[S.B. Sinha]
19
.………………….……J.
[V.S. Sirpurkar]
New Delhi
March 7, 2008