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2016 Supreme(Kar) 698
IN THE HIGH COURT OF KARNATAKA
B. Veerappa, J.
Smt. A.S. Aruna and others - Petitioners
Versus
B. Mariyappa (Since Dead) By His L.Rs - Respondent
Writ Petition No. 50868 of 2016 (GM-CPC)
Decided On : 26-10-2016
For the Petitioners: Sri Vijaya Kumar K.
For the Respondent: Shri V.R. Balaraj
Headnote:
Civil Procedure Code,1908 - Order 6 - Rule 17 - Evidence Act,1872 - Section 58 - Transfer of Property Act,1882 - Section 52 – Application - Suit for partition and separate possession - Defendants at that stage plaintiffs filed under Order 6 Rule 17 of CPC for amendment of plaint to incorporate few paragraphs after paragraph 10(b) in plaint stating that subsequent to filing of suit after leading plaintiffs evidence during course of defendants evidence plaintiffs learnt about registered Will executed by deceased defendant in favour of plaintiffs in respect of portion of Village - Subsequently plaintiffs applied for said document and confronted to witness - During course of cross-examination of and therefore plaintiffs filed present application seeking for declaration in respect of item of schedule property - Whether Trial Court is justified in dismissing application for amendment based on subsequent events in facts and circumstances of case? - Held, 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 issues have been framed in case before us only in - Nature and character of amendment and other circumstances as in instant case which we have referred to above are relevant while considering delay and its consequence on application for amendment - But a party cannot be permitted to wholly withdraw admission in pleadings as held by this Court - From a conspectus of cases cited at bar principle that emerges is that if at time of passing of decree there was some material before Court on basis of which Court could be prima-facie satisfied about existence of a statutory ground for eviction it will be presumed that Court was so satisfied and decree for eviction though apparently passed on basis of a compromise would be valid - Such material may take shape either of evidence recorded or produced in case or it may partly or wholly be in shape of an express or implied admission made in compromise agreement itself - Admissions if true and clear are by far best proof of facts admitted - Admissions in pleadings or judicial admissions admissible under Section 58 of Evidence Act made by parties or their agents at or before hearing of case stand on a higher footing than evidentiary admissions - Former class of admissions are fully binding on party that makes them and constitute a waiver of proof - They by themselves can be made foundation of rights of parties - On other hand evidentiary admissions which are receivable at trial as evidence are by themselves not conclusive - They can be shown to be wrong - Writ Petition Allowed
B. Veerappa, J.
The plaintiffs/petitioners filed this writ petition against the order dated 14-9-2016 passed on I.A. No. 33 in O.S. No. 1812 of 2005 vide Annexure-A dismissing the application filed by her under Order 6, Rule 17 of Code of Civil Procedure, 1908 ('CPC' for short) for amendment of the pleadings.
2. The plaintiffs filed the suit for partition and separate possession in respect of the suit schedule property contending that the suit schedule property is a joint family property of the plaintiffs and the defendants. The defendants denied the entire plaint averments and contended that the suit schedule property is a self acquired property of the defendants and sought for dismissal of the suit.
3. When the suit was posted for evidence of the defendants, at that stage, the plaintiffs filed I.A. No. 33 under Order 6, Rule 17 of CPC for amendment of the plaint to incorporate few paragraphs after paragraph 10(b) in the plaint stating that subsequent to filing of the suit after leading the plaintiffs evidence during the course of the defendants' evidence, the plaintiffs learnt about the registered Will dated 24-11-2004 executed by the deceased defendant 1 in favour of plaintiffs 2 to 4 in respect of portion of Sy. No. 20/1 of Kamarasanahalli Village. Subsequently, the plaintiffs applied for the said document and confronted to the witness-D.W. 2 during the course of the cross-examination of D.W. 2 and therefore the plaintiffs filed the present application seeking for declaration in respect of item No. 2 of the schedule property. Subsequent to filing of the present suit, he came to know that another Will dated 16-12-2005 said to have been executed by the 1st defendant in favour of defendant 4. Therefore he sought to incorporate the above facts and also to amend the prayer column and to declare that plaintiffs 2 to 4 are the absolute owners of item No. 2 of the suit schedule property as per the registered Will dated 24-11-2004 and also to declare that the alleged Will dated 16-12-2005 which has taken place in respect of item No. 2 of the schedule property is not binding on the plaintiffs and same is null and void.
4. The said application (I.A. No. 33) was resisted by the defendant 4 contending that the application filed by the plaintiffs for amendment at that stage is not permissible and the application is liable to be rejected as the matter was posted for arguments on the main suit after completion of evidence of both the sides. The averment that the registered Will dated 24-11-2004 was executed by defendant 1 in favour of plaintiffs 2 to 4 in respect of portion of Sy. No. 20/1 is denied. He further contended that the averment of the plaintiff that the Will dated 16-12-2005 is obtained by the defendant during the pendency of the suit is hit by Section 52 of the Transfer of Property Act, 1882 and not valid in the eye of law, is false and baseless. The declaration sought for by the plaintiffs based on the Will dated 16-12-2005 cannot be entertained as the same will change the nature of the suit and cause of action etc.
5. The Trial Court considering the entire material on record by the impugned order dated 14-9-2016 dismissed the application mainly on the ground that the application filed for amendment leads to de nova trial and in that case, additional issues have to be framed and opportunity has to be given to both the parties on the two Wills dated 24-11-2004 and 16-12-2005 and it will take considerable time and therefore rejected the application. Hence the present writ petition is filed.
6. I have heard the learned Counsel for the parties to the lis.
7. Sri Vijaykumar, learned Counsel for the petitioners/plaintiffs vehemently contended that the impugned order passed by the Trial Court rejecting the application for amendment is arbitrary and contrary to the intention of the Legislature to enact the provisions of Order 6, Rule 17 of CPC and the law declared by the Hon'ble Supreme Court time and again and also contended that th
