Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2015
(Arising from S.L.P. (C) Nos. 31423-31424 /2010)
Ram Niranjan Kajaria … Appellant (s)
Versus
Sheo Prakash Kajaria and others … Respondent (s)
WITH
CIVIL APPEAL NO. OF 2015
(Arising from S.L.P. (C) Nos. 33891/2010)
Jugal Kishore Kajaria … Appellant (s)
Versus
Sheo Prakash Kajaria and others … Respondent (s)
J U D G M E N T
KURIAN, J.:
JUDGMENT
Leave granted.
2. Whether a defendant in a suit for partition can be
permitted to withdraw an admission made in the written
statement after a pretty long period, is the issue arising for
consideration in these cases.
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Page 1
3. Partition Suit No. 696 of 1978, filed in the High Court of
Calcutta on Original Side, pertains to the partition of premises
No.6, Russel Street, Calcutta, originally belonging to one Motilal
Kajaria. Defendant Nos. 5 and 12 are the son and widow,
respectively, of the predeceased son, viz., Mahabir Prasad of
Motilal Kajaria. In the Partition Suit, Defendant Nos. 5 and 12
filed a joint written statement on 16.08.1979, inter alia , stating
as under:
“1. These defendants state that there is no cause
of action against these defendants and these
defendants are unnecessary parties and as such
the suit against these defendants should be
dismissed with costs,…
“a) xxx xxx xxx
b) In the year 1942, the said Mahabir Prasad
Kajaria, since deceased separated from his father
Motilal Kajaria since deceased and his brothers,
namely the defendants No. 1 to 4 in food, estate
and business. Since his separation from his father
and brothers the said Mahabir Prasad Kajaria was
carrying on his independent business and holding
his own separate property. The said “Mahabir
Prasad Kajaria” also renounced all his interests in
all the properties and assets of his father the said
Motilal Kajaria since deceased.
JUDGMENT
c) These defendants state that neither of them is a
co-sharer for the Premises No. 6, Russel Street,
Calcutta and nor they have any right title or
interest whatsoever in the said premises. These
defendants further state that after the death of
Motilal Kajaria neither of these defendants had
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Page 2
inherited his property nor business as the said
Mahabir Prasad separated from his father and
brothers in 1942 and renounced all his rights, title
and interest in the properties of the said Motilal
Kajaria.”
4. Prior to the filing of the written statement, they had also
filed an affidavit dated 29.11.1978 while opposing an
application for appointment of receiver in respect of the suit
property stating that:
“I state that my late father Mahabir Prasad Kajaria
was separated from my grand father late Motilal
Kajaria in the year 1942 and severed all his
connections with his father and brothers and since
then my father was carrying independent business
and holding separate property.
I further state neither I nor my mother is co –
sharer of the Premises No. 6, Russel Street,
Calcutta and we have no right, title and interest
whatsoever in the said Premises No. 6, Russel
Street, Calcutta nor we have inherited the shares
of my grand father Late Motilal Kajaria and as such
I state that we have been unnecessarily joined as
defendants.”
JUDGMENT
5. In the Order dated 02.05.1979, while appointing a Court
Receiver in respect of the suit property, the court recorded the
following findings:
“… Mahabir Prasad Kajaria had no interest in the
property as such respondent No. 5 (Sheo Prakash
Kajaria) also can have no interest in the said
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Page 3
property. The allegation that the co-owners have
not received any money towards their shares is
incorrect…”
6. After Defendant Nos. 5 and 12 filed written statement
on 14.09.1979, Smt. Bhagwani Devi Kajaria-Defendant No.16,
who is the mother of late Mahabir Prasad Kajaria (Grand mother
of Defendant No.5 and mother-in-law of Defendant No.12), filed
a written statement clearly stating that late Mahabir Prasad had
separated from his father and other brothers as early as in
1942 and had also renounced all his rights in the movable and
immovable properties of his father Motilal Kajaria. The relevant
portion of the written statement of the grand mother of
Defendant No.5 reads as follows:
“b) The defendant Nos. 1, 2, 3 and 4 are the sons
of this defendant and defendant No. 5 is the
grandson of this defendant. This defendant’s
second son Mahabir Prasad Kajaria father of the
defendant No. 5 Sheo Prakash Kajaria and
husband of the defendant No. 12 Sm. Ginia Devi
Kajaria was separated from his father and brothers
in food, estate and business in 1942. He
renounced all his right, title and interests in the
moveable and immoveable properties of his father
the said Motilal Kajaria. The said Mahabir Prasad
died in 1949. Since Mahabir Prasad Kajaria
separated from his father he was carrying on his
independent business and also acquired
properties.”
JUDGMENT
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Page 4
7. On 13.12.1979, the petitioner herein, who is Defendant
No.4, had also filed his written statement on the same lines
indicated above.
8. On 02.07.1980, the learned Single Judge, on an
application for perjury, had recorded the following findings:
“Pannalal Kajaria had three sons Matilal, Jaharmal
and Onkarmal Kajaria. Before the death of Motilal
th
Kajaria on 5 June, 1952 his second son, Mahabir
Prasad Kajaria was separated from him in 1942 in
food and in estate and renounced all his claim
over the properties of Motilal Kajaria.
… There was a declaration given by Smt. Ginia
Devi Kajaria, widow of Mahabir Prasad Kajaria on
th
25 February, 1956 before the Joint Arbitrators
stating that her husband Mahabir Kajaria
separated himself from his father Matilal Kajaria
and his brothers in food, estate and business
renounced his right title and interest in the said
joint immovable properties in favour of his
brothers and father.”
JUDGMENT
9. On 09.01.1989, Plaintiff No. 6, viz. Sulochna
Devi had filed an application seeking leave for withdrawal of
the suit wherein also there was a statement regarding
relinquishment of the claims of Defendant Nos. 5 and 12.
10. It is to be noted that Defendant No. 5 is a businessman,
and going by his date of birth, he was 37 in 1978 when he filed
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Page 5
the affidavit, 38 when he filed the written statement on behalf
of his mother and in 1989, he was aged 49 years.
11. After about 15 years of the written statement, on
17.01.2004, Defendant Nos. 5 and 12 filed an application for
amendment of the written statement mainly seeking to resile
from the admissions regarding relinquishment of their right in
the suit property.
12. After one year of the said application for amendment of
the written statement, they also filed a civil suit (Civil Suit No.9
of 2005) on 19.01.2005, seeking a declaration attacking the
arbitration award dated 13.09.1956 regarding the partition of
the property and claiming right in the suit property.
13. On 13.09.2008, the learned Single Judge dismissed the
JUDGMENT
application. However, the intra-court appeal filed by Defendant
Nos. 5 and 12 was allowed by the Division Bench of the High
Court and hence these appeals.
14. The Division Bench in the impugned judgment has
taken the view that the rejection of the application for
amendment would result in failure of justice and would cause
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irreparable injury to Defendant Nos. 5 and 12. According to the
Division Bench, in the impugned Judgment:
“In our view, there was no justification of denying
such an opportunity to the appellants to prove the
amended version on the ground of mere delay, the
effect of which will be, to unjustly permit the
opposing defendants to reap the benefit of an
apparent admission, which is not conclusive proof
of the fact contained in the pleading in accordance
with the law of the land, and which may not be
true. Moreover, for considering the question
whether the amendment is a malafide one, we
cannot lose sight of the fact it is not even the case
of the opposing defendants that by way of
relinquishing his interest, Mahabir got any
property of the Coparcenary in lieu of
relinquishment. Thus, malafide on the part of the
appellants cannot be inferred from the apparent
facts of the present case.
We, thus, find that the learned Single Judge,
while rejecting the application for amendment of
the written statement filed by the appellants, did
not follow the well-accepted principles, which are
required to be followed, while deciding this type of
an application for amendment of the written
statement. Thus, it was a case of improper
exercise of discretion by the learned Trial Judge by
not following the binding precedents, which
justified interference by the appellate Court.”
JUDGMENT
15. We are afraid the view taken in the impugned judgment
is not true to facts. Even according to Defendant Nos. 5 and 12,
they had their separate property and they were doing
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independent business. In the affidavit filed on 29.11.1978
before the High Court (Annexure-P5), it is stated as follows:
“1. I am a respondent No. 5 herein and Smt.
Giniya Devi Kajaria, respondent No. 12 is my
mother and I am acquainted with the facts and
circumstances of this case and as such I am
competent to affirm this affidavit on behalf and on
behalf of my mother Smt. Giniya Devi Kajaria the
respondent No. 12. I have read a copy of the
Notice of Motion taken out by the Advocate of the
th
petitioner on 19 September, 1978 and a petition
th
affirmed by Shreelall Kajaria on 19 September,
1978 to be intended to be used as grounds in
support of the said Notice of Motion and I state
that I have understood the meaning, intents and
purposes thereof.
2. I state that my late father Mahabir Prasad
Kajaria was separated from my grand father Late
Motilal Kajaria in the year 1942 and severed all his
connections with his father and brothers and since
then my father was carrying on independent
business and holding separate property.
3. I further state neither I nor my mother is a
co-sharer of the Premises No. 6, Russel Street,
Calcutta and we have no right, title and interest
whatsoever in the said Premises No. 6, Russel
Street, Calcutta nor we have inherited the shares
of my grand father Late Motilal Kajaria and as such
I state that we have been unnecessarily joined as
defendants.
JUDGMENT
4. I state that my grand father Late Motilal
th
Kajaria died on 5 June, 1952 and disputes and
differences arose between the heirs and legal
representatives of Late Motilal Kajaria in respect of
immovable properties left by my said grand father
which disputes were referred to an arbitration of
Dulichand Kheria, Sheo Prasad Patodia and
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Ramnath Kanoria and in the said Arbitration
Proceedings my mother Smt. Giniya Devi Kajaria
defendant No. 12 herein made a declaration in
th
writing on 25 February, 1956 before the
Arbitrators stating that my Late father Mahabir
Prasad Kajaria separated himself from father and
his brothers in food, estate and business and
renounced the right, title and interest in the joint
immovable property in favour of his brothers and
th
father. A copy of the said declaration dated 25
February, 1956 of my mother Smt. Giniya Devi
Kajaria defendant No. 12 herein addressed to the
Arbitrators is enclosed herewith and marked with
letter “A”.
5. I state and submit that the petition is not
maintainable and should be dismissed with cost.
6. With reference to paragraph 20 of the said
petition I deny that I have got 2.78% in the said
premises No.6, Russel Street, Calcutta as alleged
or at all which will also appear from the Registered
th
Award dated 13 September, 1956 of the said
Arbitrators. Save and except I have no knowledge
in the allegations made in different paragraphs of
the said petition and I do not admit the same.
7. I state that the petition No.1 Shreelall Kajaria
after he was released from imprisonment he was
serving as my employee in my firm M/s. Evergreen
Industries at Sonepat Haryana at a monthly salary
of Rs.400/- per month upto the year 1972 and was
staying at Sonepat Haryana till he was under my
service.”
JUDGMENT
16. The clear stand taken by Defendant No. 5 when he was
aged 37 and when he was in active business is that his father
had separated from the grandfather in the year 1942 and since
then, he was carrying on independent business and holding
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separate property. It is crucially relevant to note that the
declaration of Defendant No. 12 before the Arbitrators
regarding the relinquishment was produced by them only.
17. Learned Counsel for Defendant Nos. 5 and 12, in the
impugned order has placed heavy relevance on Panchdeo
1
Narain Srivastava v. Km. Jyoti Sahay and Another . It was
a case where the plaintiff moved an application for amendment
of the plaint regarding the relationship of the second
defendant. It was stated in the plaint that he was the uterine
brother of one R. Later, an application for amendment was
moved for deletion of the word “uterine” from the plaint. The
Trial Court allowed the application but in Revision, the High
Court set aside the order. While restoring the order passed by
the Trial Court, this Court held at Paragraph-3 of the Judgment
JUDGMENT
as follows:
“ 3. Even if the High Court was justified in holding
that the deletion of the word ‘Uterine’ has some
significance and may work in favour of either side
to a very great extent yet that itself would not
provide any justification for rejecting the
amendment in exercise of its revisional
jurisdiction. We may, in this connection, refer to
Ganesh Trading Co. v. Moji Ram wherein this Court
after a review of number of decisions speaking
through Beg, C.J. observed that procedural law is
1
(1984) Supp. SCC594
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Page 10
intended to facilitate and not to obstruct the
course of substantive justice. 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. The
learned Trial Judge, granting the application for
amendment was satisfied that in order to
effectively adjudicate upon the dispute between
the parties, amendment of the pleading was
necessary. The High Court in its revisional
jurisdiction for a reason which is untenable ought
not to have interfered with the order made by the
trial court. The learned counsel for the
respondents in this connection read one
unreported decision of this Court in which this
Court upheld the decision of the High Court setting
aside the order granting amendment in exercise of
its revisional jurisdiction. We have gone through
the judgment. The decision does not lay down any
particular principle of law and appears to be a
decision on its own facts. And ordinarily, it is well
settled that unless there is an error in exercise of
jurisdiction by the trial court, the High Court would
not interfere with the order in exercise of its
revisional jurisdiction.”
JUDGMENT
18. The above decision was followed in Sushil Kumar Jain
2
v. Manoj Kumar and another . The case pertained to eviction
proceedings. The original stand taken by the tenant was that
there were different tenancies. However, an application for
amendment was moved stating that there are three different
2
(2009) 14 SCC 38
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portions under one tenancy and not different portions under
different tenancies. The Court, at Paragraph-12, held as follows:
“ 12. In our view, having considered the averments
made in the application for amendment of the
written statement, it cannot be said that in fact
neither any admission was made by the appellant
in his original written statement nor had the
appellant sought to withdraw such admission
made by him in his written statement. That apart,
after a careful reading of the application for
amendment of the written statement, we are of
the view that the appellant seeks to only elaborate
and clarify the earlier inadvertence and confusion
made in his written statement. Even assuming
that there was admission made by the appellant in
his original written statement, then also, such
admission can be explained by amendment of his
written statement even by taking inconsistent
pleas or substituting or altering his defence.”
19. The learned Counsel appearing for the appellant mainly
referred to three Judgments of this Court. In Modi Spinning
JUDGMENT
3
and Weaving Mills Co. Ltd. v. Ladha Ram & Co. , it was
held as follows at Paragraph-10 :
“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
defendants. The High Court rightly rejected the
3
(1976) 4 SCC 320
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application for amendment and agreed with the trial
court.”
4
20. In Gautam Sarup v. Leela Jetly and others , after
considering Panchdeo Narain Srivastava (supra) and Modi
Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co.
(supra) and several other decisions dealing with the
amendment on withdrawal of admissions in the pleadings, it
was held at Paragraph-28 as follows:
“ 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 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.”
JUDGMENT
21. On amendments generally, in the decision reported in
Revajeetu Builders and Developers v. Narayanaswamy
5
and Sons and others , after referring to Gautam Sarup
(supra), the principles on amendment have been summarized
at Paragraph-63. It has been held as follows :
4
(2008) 7 SCC 85
5
(2009) 10 SCC 84
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“63. On critically analyzing both the English
and Indian cases, some basic principles emerge
which ought to be taken into consideration while
allowing or rejecting the application for
amendment:
(1) whether the amendment sought is
imperative for proper and effective adjudication
of the case;
(2) whether the application for amendment is
bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be
compensated adequately in terms of money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended
claims would be barred by limitation on the date
of application.
These are some of the important factors which
may be kept in mind while dealing with application
filed under Order 6 Rule 17. These are only
illustrative and not exhaustive.”
JUDGMENT
22. In the case before us, we are afraid, many of the factors
referred to above, have not been satisfied. It is significant to
note that Defendant Nos. 5 and 12, after moving an application
for amendment withdrawing the admissions made in the
written statement, have filed a substantive suit attacking the
alleged relinquishment of their claim in the family property and
we are informed that the trial is in progress. In that view of the
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matter, we do not propose to deal with the matter any further
lest it should affect the outcome of the suit filed by Defendant
Nos. 5 and 12 since the declaration sought in the suit filed in
2005 is to take away the basis of the said relinquishment of the
claim in the suit property. However, as far as amendment is
concerned, the attempt to wholly resile from the admission
made after twenty five years, we are afraid, cannot be
permitted.
23. Delay in itself may not be crucial on an application for
amendment in a written statement, be it for introduction of a
new fact or for explanation or clarification of an admission or
for taking an alternate position. It is seen that the issues have
been framed in the case before us, only in 2009. The nature
and character of the amendment and the other circumstances
JUDGMENT
as in the instant case which we have referred to above, are
relevant while considering the delay and its consequence on
the application for amendment. But a party cannot be
permitted to wholly withdraw the admission in the pleadings, as
held by this Court in Nagindas Ramdas v. Dalpatram
6
Ichharam alias Brijram and others . To quote Paragraph-27:
6
(1974) 1 SCC 242
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Page 15
“ 27 . From a conspectus of the cases cited at the
bar, the principle that emerges is, that if at the
time of the passing of the decree, there was some
material before the Court, on the basis of which,
the Court could be prima facie satisfied, about the
existence of a statutory ground for eviction, it will
be presumed that the Court was so satisfied and
the decree for eviction though apparently passed
on the basis of a compromise, would be valid.
Such material may take the shape either of
evidence recorded or produced in the case, or, it
may partly or wholly be in the shape of an express
or implied admission made in the compromise
agreement, itself. 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 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 other hand,
evidentiary admissions which are receivable at the
trial as evidence, are by themselves, not
conclusive. They can be shown to be wrong.”
JUDGMENT
(Emphasis supplied)
24. We agree with the position in Nagindas Ramdas
(supra) and as endorsed in Gautam Sarup (supra) that a
categorical admission made in the pleadings cannot be
permitted to be withdrawn by way of an amendment. To that
extent, the proposition of law that even an admission can be
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withdrawn, as held in Panchdeo Narain Srivastava (supra),
does not reflect the correct legal position and it is overruled.
25. However, the admission can be clarified or explained by
way of amendment and the basis of admission can be attacked
in a substantive proceedings. In this context, we are also
mindful of the averment in the application for amendment that:
“11. …. Mahabir Prasad Kajaria died at age of 24
th
years on 7 May, 1949 when the defendant
No. 5 was only 2 years and the defendant No.
12 was only 21 years. Till the death of
Mahabir and even thereafter, the petitioners
had been getting benefits from income of the
joint properties. The defendant No.5 and his
two sisters, namely, Kusum and Bina were
brought up and were maintained from the
income of the joint family properties. The
petitioners after the death of Mahabir, they
continued to live in the joint family as
members and till now members of the joint
family. In the marriage of the two sisters of
the defendant no.5 Kusum and Bina (now
after marriage Smt. Kusum Tulsian and Smt.
Bina Tulsian) the expenses were wholly borne
out from the incomes of the joint family
properties. The said facts are well known to
all the family members and their relations.”
JUDGMENT
26. In the counter affidavit filed before this Court,
Defendant Nos. 5 and 12 have stated as follows:
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“The alleged letter of 1956 allegedly issued by the
widow of Mahabir Prasad used in the arbitration
proceedings where she was not a party admitting
relinquishment of the share of her husband and
thereafter admitting such letter in the original
pleading is not what the answering respondents
want to resile and/or withdraw from but by the
present amendment had only ought to explain the
circumstances in which such letter has been
written.”
27. In the above circumstances, we do not intend to make
the suit filed in the year 2005 otherwise infructuous. The
application for amendment withdrawing the admissions made
in the written statement on relinquishment of the claim to the
suit property by Defendant Nos. 5 and 12 is rejected. However,
we, in the facts and circumstances of the case, are of the view
that Defendant Nos. 5 and 12 should be given an opportunity to
explain/clarify the admissions made in the written statement.
JUDGMENT
Accordingly, Defendant Nos. 5 and 12 are permitted to file an
application within one month from today limiting their prayer
only to the extent of explaining/clarifying the disputed
admissions in the written statement which will be considered
on its merits and in the light of the observations made herein
above.
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28. Though the learned Counsel for the appellant
vehemently pressed for costs, we reluctantly refrain from
passing any order in that regard. After all, it is a suit for
partition of the family property. At any stage, the parties can
have a change of heart and ignore the law or facts or other
technicalities and reach an amicable settlement.
29. The appeals are partly allowed as above. The impugned
Judgment will stand modified to the extent indicated herein
above.
30. There shall be no order as to costs.
..…….…..…………J.
(ANIL R. DAVE)
JUDGMENT
..……………………J.
(KURIAN JOSEPH)
..…….…..…………J.
(AMITAVA ROY)
New Delhi;
September 18, 2015.
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