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2010 Supreme(Ori) 700
IN THE HIGH COURT OF ORISSA
B.K. Patel, J.
JHULLA SAHOO (DEAD) HIS LEGAL HEIRS SABITRI SAHOO AND OTHERS - APPELLANT
Versus
MINATIBALA BEHERA AND OTHERS - RESPONDENT
O.J.C. No. 5637 of 2002
Decided On : 02-11-2010
Once the pleadings contain an admission in favor of the adversary, such admission cannot be allowed to be withdrawn if it would cause irretrievable prejudice to the other party.
Headnote:
Amendment - Civil Revision - Order 6 Rule 17, Section 151 of the CPC - 6.1.1973, 20.8.1984 - [Order 6 Rule 17, Section 151 of the CPC] - The court discussed the amendment sought by Defendant No. 1 to his written statement, the effect of the amendment on admissions made in favor of Defendant No. 2, and the legal principles governing the withdrawal of admissions through amendment. The court cited various decisions to establish that once the pleadings contain an admission in favor of the adversary, such admission cannot be allowed to be withdrawn if it would cause irretrievable prejudice to the other party. The court emphasized that amendments to pleadings should not be allowed if they would displace the case of the adversary and cause irretrievable prejudice.
Fact of the Case:
The suit involved a dispute over a land agreement and subsequent lease deed. The Plaintiff sought specific performance of the contract, declaration of the lease deed as void, and permanent injunction. Defendant No. 1 contested the suit, alleging that the agreement became ineffective due to non-payment of the balance consideration amount within the stipulated time. The suit culminated in a judgment and decree, and appeals were filed. During the retrial, Defendant No. 1 sought to amend his written statement, leading to a legal dispute over the effect of the proposed amendment on admissions made in favor of Defendant No. 2.
Finding of the Court:
The court found that the proposed amendment sought to displace Defendant No. 2 from the admissions made in his favor in the written statement. It emphasized that the amendment, if allowed, would cause irretrievable prejudice to Defendant No. 2 and would be against the principles of justice. The court held that the amendment should not be allowed as it would completely change the case and cause irretrievable prejudice to the other party.
Issues: The main issue was whether the proposed amendment to the written statement should be allowed, considering its effect on admissions made in favor of Defendant No. 2 and the principles governing the withdrawal of admissions through amendment.
Ratio Decidendi: The court's decision was based on the legal principle that once the pleadings contain an admission in favor of the adversary, such admission cannot be allowed to be withdrawn if it would cause irretrievable prejudice to the other party. The court cited various decisions to support this principle and emphasized that amendments to pleadings should not be allowed if they would displace the case of the adversary and cause irretrievable prejudice.
Final Decision: The court dismissed the writ petition, upholding the rejection of the proposed amendment to the written statement. It held that the amendment should not be allowed as it would completely change the case and cause irretrievable prejudice to the other party.
JUDGMENT :
B.K. Patel, J. - In this writ petition, Petitioners have assailed the legality of order dated18.4.2002 passed by Additional District Judge, Fast Track Court No. 2, Bhubaneswar in Civil RevisionNos.26 of 2001 (12 of 2002) by which order dated 9.7.2001 passed by learned Civil Judge (Senior Division), Bhubaneswar in O.S. No. 190 of 1984-I rejecting Petitioner's application under Order 6 Rule 17 read with Section 151 of the CPC for amendment of written statement was confirmed.
2. Petitioners are legal heirs of Defendant No. 1 whereas opposite party Nos. 1 to 3 are legal heirs of the Plaintiff and opposite party No. 4 is the Defendant No. 2 in the suit. Government of Orissa in the General Administration Department has been impleaded as Defendant No. 3.
3. Defendant No. 1 being the lessee of the Government in respect of the suit land entered into registered agreement for sale dated 6.1.1973 with the Plaintiff for a consideration of Rs. 4,800/-. As per the agreement Defendant No. 1 received advance of Rs. 2,900/-, handed over possession of the suit land to the Plaintiff and undertook to execute registered sale deed within one year after obtaining requisite permission from the State Government and on receipt of the balance consideration amount. It is also not disputed that Defendant No. 1 has executed registered tripartite document dated 20.8.1984 with Defendant Nos. 2 and 3 to lease out the suit land in favour of Defendant No. 2.
4. Plaintiff has filed the suit for specific performance of contract dated 1.6.1973 by directing execution of registered sale deed, for declaration that the tripartite lease deed executed by the Defendants is void and for permanent injunction restraining the Defendants from interfering with peaceful possession over the suit land. It is asserted that tripartite lease deed executed by the Defendants is a sham document which does not convey any right, title or interest in favour of Defendant No. 2. In his written statement stand of Defendant No. 1 is that taking benefit of his simplicity and illiteracy the Plaintiff did not incorporate in the agreement dated 61.1973 specific stipulation made by Defendant No. 1 to the effect that in case balance consideration amount was not paid within six months, the agreement would be invalid and advance consideration amount paid by the Plaintiff would be forfeited. As Plaintiff did not pay the balance amount within the stipulated time, the agreement became ineffective. Thereafter, Defendant No. 1 being in need of money transferred the suit land in favour of Defendant No. 2 on the strength of tripartite agreement entered into among the Defendants. Defendant No. 2 filed written statement supporting the stand of the Defendant No. 1 making counter claim for a decree to deliver possession of suit land to him.
5. It is pertinent to note that the suit culminated in pronouncement of judgment and decree dated 30.7.1994 and 18.8.1994 and Defendant No. 2 as well as Plaintiff preferred appeals against the said judgment and decree before the learned District Judge, Khurda at Bhubaneswar in T.A. No. 1/44 of 1997/94 and 2/48 of 1997/94 respectively. In the common judgment passed on 17.5.1997 learned District Judge, Khurda observed that in the suit material issues, such as whether the Plaintiff since the date of contract was continuously ready and willing to perform his part of the contract; whether the Defendant No. 2 was a bona fide purchaser for value without notice; whether the Defendant No. 2 was dispossessed by the Plaintiff while in possession over the suit land; whether the suit was barred by limitation; and whether Defendant No. 2 is entitled to the relief of recovery of possession as per his counter-claim were omitted to be framed. No finding was recorded and no evidence was adduced on these issues. Both the appeals were allowed and the suit was remanded for retrial "after framing additional issues strictly on the pleadings of the parties and for considering the counter claim
