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2015 Supreme(Cal) 281
IN THE HIGH COURT OF CALCUTTA
Samapti Chatterjee, J.
Jyotsna Bala Maity & Others – Petitioners
Vs.
Smt. Hansibala Pramanik and Others – Respondent
C.O. 852 of 2015
Decided On : 19.06.2015.
Advocate Appeared:
For the Petitioners:Mr. Debasish Ray, Learned Advocate Mr. Apurba Krishna Das, Learned Advocate
For the Defendants :Mr. Asish Bagchi, Learned Advocate Mr. Amit Baran Dash, Learned Advocate
Admissions made in a written statement cannot be withdrawn or omitted by filing an application under Order 6 Rule 17 CPC.
Headnote:
AMENDMENT OF WRITTEN STATEMENT - ORDER 6 RULE 17 CPC - ADMISSION - WITHDRAWAL - NOT PERMISSIBLE - CIVIL PROCEDURE CODE, 1908
Fact of the Case:
Plaintiff/petitioner challenged the order passed by the Civil Judge allowing the defendants/opposite parties' application under Order 6 Rule 17 CPC for amendment of written statement, whereby they sought to delete/withdraw the admissions.
Finding of the Court:
The court held that the belated application for amendment of written statement filed by the defendants/opposite parties after 17 years of filing the original written statement without assigning any cogent reasons cannot and should not be mechanically allowed.
Issues: 1. Whether the defendants/opposite parties can withdraw the admission made in the original written statement through an application for amendment of written statement? 2. Whether the impugned order allowing the amendment of written statement suffers from material illegality?
Ratio Decidendi: 1. The court relied on the Supreme Court decisions in Modi Spinning & Weaving Mills Co. Ltd vs Ladha Ram & Co. and Heeralal vs Kalyan Mal to hold that admissions made in a written statement cannot be withdrawn or omitted by filing an application under Order 6 Rule 17 CPC. 2. The court observed that the defendants/opposite parties sought to withdraw the admission of ownership and possession of the said Kaniprasad @ Kaliram Maity as disclosed in the original written statement and made out an altogether new case, which is not permissible in law.
Final Decision: The court allowed the revisional application and set aside the impugned order allowing the amendment of written statement.
Samapti Chatterjee, J.
1. Challenging order no.125 dated 21st Februray, 2015 passed by Sri Suthirtha Banerjee, Learned Civil Judge (Junior Division) 2nd Additional Court, Contai, in Title Suit No.5 of 2007 whereby the Learned Judge allowed application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of written statement, the plaintiff/petitioner filed the instant revitional application.
2. Mr. Debasish Ray, learned Advocate appearing for the petitioner contended that the Learned Judge erred in law by allowing the said application for amendment of written statement whereby the defendants/opposite parties sought to delete/withdraw the admissions by way of amendment application which is not permissible in law.
3. Mr. Ray further vehemently urged that admission cannot be withdrawn or omitted by filing application under order 6 Rule 17 of the Civil Procedure Code.
4. Mr. Ray further contended that after lapse of more than 17 years of filing of the written statement the defendant nos. 6 to 7 on 20.12.2014 filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement and in the said proposed amendment virtually sought to withdraw all the admission relating to ownership and possession of the said Kaniprasad @ Kaliram Maity as averred in the original written statement and made out an altogether new case and also did not disclose the source of such belated information and collection of documents. In support of his contention Mr. Ray relied on a Three Judge Bench of a Supreme Court Judgment reported in AIR 1977 (Supreme Court) Page 680 Paragraphs-7,8 and 9 (M/s. Modi Spinning & Weaving Mills Co. Ltd and another vs M/s. Ladha Ram & Co.) which are quoted below :-
“Para-7-The trial Court rejected the application of the defendants for amendment. One of the reasons given by the trial Court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial Court said that “the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law”. The trial Court held the application for amendment to be not bona fide.
Para-8-The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.
Para-9-The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.”
5. Mr. Ray also relied on a Supreme Court decision reported in AIR 1998 (Supreme Court) Page 618 Paragraphs 9, 10 and 12 (Heeralal vs Kalyan Mal and Others) (where the Hon’ble Supreme Court relied on the decision reported in AIR 1977 SC Page 680) (Supra) and held that while granting amendment of written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff’s and cause him irretrievable prejudice.
6. In conclusion Mr. Ray submitted that order no.125 dated 21st February, 2015 passed by Sri Suthirtha Banerjee, Learned Civil Judge (Junior Division), 2nd Court, Contai in Title Suit no.5 of 2007 whereby allowed application under order 6 Rule 17 of the Code of Civil Procedure should be set aside.
7. Per contra, Mr. Asis Bagchi, learned Advocate appearing for the defendants/opposite parties contended that in the written statement the defendants/opposite parties only admitted the existence of the documents but did not admit the contents of the said documents. Therefore, it cannot be suggested that defendants/opposite parties admitted the contents of the documents as has been emphasized by Mr. Ray.
8. Mr. Bagchi also vehemently argued that by allowing the said application under Order 6 Rule 17 of the Civil Procedure Code for amendment of the written statement
