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Writ Petition No. 28997 of 2019 (GM-CPC)
B. Kumarswamy v. Master K.M. Nikhil
2019 SCC OnLine Kar 1219
†
In the High Court of Karnataka
(BEFORE KRISHNA S. DIXIT, J.)
B. Kumarswamy and Others .…. Petitioners;
v.
Master K.M. Nikhil and Another .…. Respondents.
1
Writ Petition No. 28997 of 2019 (GM-CPC)
Decided on July 23, 2019
Advocates who appeared in this case:
Sri. M.B. Nalgund, Sr. Counsel for Sri. N.N. Damodar, Advocate
Sri. P. Nataraju, Advocate for C/R1 & R2
The Order of the Court was delivered by
KRISHNA S. DIXIT, J.:— The petitioners being the defendants in a partition suit filed
by the respondent-plaintiffs in O.S. No. 57/2015 are knocking at the doors of writ
court for laying a challenge to the order dated 13.06.2019, a copy whereof is at
Annexure-K, whereby their application in I.A. No. 7 filed under Order VI Rule 17 of
CPC 1908 seeking leave to amend their Written Statement. The respondents having
entered caveat through their counsel resist the writ petition.
2. Learned Sr. Advocate Mr. M.B. Naragund appearing for the counsel on record for
the petitioners submits that the impugned order suffers from a vice of non-application
of mind to the pleas taken up in the Written Statement as to the subject property is
being self acquired, other pleas to the contra notwithstanding; a Co-ordinate Bench of
this Court in petitioner's R.F.A. No. 179/2018 (PAR) vide judgment dated 18.12.2018
allowed their application for production of additional documents, having set aside the
judgment & decree impugned therein; these documents were intended to be produced
inter alia for showing that the subject properties are not the joint family properties;
even this has been ignored by the Court below; in any circumstance the Indian
Evidence Act, 1872 does not treat the admissions as conclusive proof of the matter
admitted; even this also has not been adverted to by the learned trial Judge. So
arguing he seeks allowing of the writ petition.
3. Learned counsel for the respondents Mr. P. Nataraju vehemently contends that
the impugned order declining leave to amend the Written Statement is perfectly in
accord with what the Apex Court said in the case of HEERA LAL v. KALYAN MAL,
(1998) 1 SCC 278 : AIR 1998 SC 618, inasmuch as granting the leave would
eventually result into withdrawing the admissions given in the pleadings; merely
because additional documents are permitted to be produced, that itself does not
sanctify the claim for grant of leave to amend the pleadings to the disadvantage of the
respondents; the Court below having exercised the discretion in accordance with the
rules of reason & justice, the impugned order does not merit deeper examination at
the hands of this Court. So contending he seeks dismissal of the writ petition.
4. Having heard the learned counsel for the parties and having perused the petition
papers, relief needs to be granted to the petitioners because:
(i) suit in O.S. No. 57/2015 is for a decree of partition & separate possession of the
properties; the Written Statement is filed by the petitioners on 26.10.2015; at
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para 8 thereof the petitioners have specifically denied that the properties are the
ancestral and joint family properties; at para 14 they have stated that these
properties were the exclusive acquisition of Smt. Kamalamma; it is true that,
there are some paragraphs where a contra stand is also taken; therefore these
pleas in the Written Statement cannot be straightaway construed as admission,
which otherwise would have amounted to; that was not the position in the
decision of the Apex Court supra wherein there were unconditional admissions as
to the nature of property:
th
(ii) Sarkar on Law of Evidence, 19 Edition (LexisNexis) at page 915 states that
Section 31 of the Indian Evidence Act, 1872 provides that admissions whether
written, oral, or implied from conduct or assumed character are not conclusive of
the matters admitted i.e., although they are good evidence against the party
making them or his representatives in interest, the matter is not concluded and
he is at liberty to prove that they were made under a mistake of law or fact, or
were untrue or were made under threat, inducement or fraud, unless they
operate as estopples under the provisions contained in ss. 115-117, that is,
unless his opponent has been induced to alter his condition by acting upon such
admissions to his detriment;
(iii) it is a settled legal position that it is open to a defendant in a suit to take up
inconsistent plea in the Written Statement; the Apex Court in the case of
BALDEV SINGH v. MANOHAR SINGH, JT 2006 (7) SC 139 at para 15 has
observed: “This being the position, we are therefore of the view that inconsistent
plea can be raised by Defendants in the written statement although the same
may not be permissible in the case of plaint, in the case of Modi Spinning and
Weaving Mills Co. Ltd. v. Ladha Ram and Co., (1976) 4 SCC 320, this principle
has been enunciated by this Court in which it has been clearly laid down that
inconsistent or alternative pleas can be made in the written statement.
Accordingly, the High Court and the Trial Court had gone wrong in holding that
Defendants/Appellants are not allowed to take inconsistent pleas in their
defence”. There is nothing either in the Civil Procedure Code or in the Evidence
Act, that prevents a party from pleading alternate pleas, whether consistent,
complimentary or inconsistent and conflicting. (Dadabhau S. Ghodke v. Mohanlal
K. Agrawal, 2003 Vol 105(1) Bom LR 676 (679) (Bom); and,
(iv) no prejudice would be caused to the other side by granting leave to amend the
Written Statement in as much as the production of additional evidence permitted
by this Court in the aforesaid RFA was also to show the nature of the property in
the suit; there is no injury that cannot be remedied by imposition of cost and
therefore, whatever little prejudice the respondents are likely to suffer by
amendment of the Written Statement can be set right by award of costs;
5. In the above circumstances, the writ petition is allowed; the impugned order is
set at naught; petitioner's application in I.A. No. 7 having been favoured, the leave to
amend their Written Statement is accorded subject to they paying a cost of Rs. 2,500/
- to the contesting respondents, each on or before next date of hearing of the suit,
failing which the impugned order stands resurrected. All contentions are kept open.
———
†
Principal Bench at Bengaluru
1
This Writ Petition is Filed Under articles 227 of the constitution of India praying to Quash/set Aside the
Impugned Order dated 13.06.2019 on I.A. No. VII, passed by the Hon'ble Senior Civil Judge and CJM at
Chamarajanagar in O.S. No. 57/2015 (Annexure-K) and Consequently Allow the IA No. 7 Filed by the
Defendants/Petitioners Herein, Under Order VI Rule 17 R/W Sec. 151 of C.P.C.
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