A RAVINDRANATH Vs. UMA S POOJARY

JUDGEMENT

(1.) A furious legal debate has emanated over the issue that is the subject-matter of this civil revision petition. The petitioner who is the defendant before the Trial Court in a partition suit filed an application for amendment of his written statement whereby he desired to add one paragraph to the effect that the property which is Item No. 1 in Schedule a viz. , "hotel Sujatha" has been bequeathed to him by virtue of a will made by his late father. The plaintiffs resisted the application on a variety of grounds, the basic plea being that it is not permissible to alter the structure of the written statement because this plea was not only inconsistent with but diametrically opposed and contradictory to the case originally made out in the written statement. Also, on merits the contention raised was that the plea is an afterthought and is inherently false because his late father had died in and around 1980. The suit was filed in 1989. The original written statement was filed in 1990 and amended written statement was filed in 1992 and after all of this, as late as in 2001 the present plea was put forward. The learned Trial judge has rejected the application and even had occasion to observe that quite apart from the legal impermissibility of the same that this was a case in which even the explanation put forward with regard to where the will came from etc. , gives rise to serious suspicion and that consequently, even on merits the genuineness of the plea and the document appeared to be suspect and that therefore there was no question of allowing the amendment. The present civil revision petition challenges that decision.

(2.) THE principal submission canvassed by the petitioner's learned advocate is that there is a serious contest before the Trial Court between the family members who have asked for partition. He points out that as far as this item of property is concerned, that the petitioner has not taken up an inconsistent plea because he had originally contended that he is the full owner of that property and that it does not qualify for being considered for partition. The submission is that the petitioner desires to amplify that contention by indicating as to how he became the owner by pointing out that his father's Will was the document on the basis of which the property was left to him and that this document was found only 48 days prior to the application while searching for old papers. According to the petitioner's learned Advocate while the Court is adjudicating the dispute once and for all it is only fair that all aspects of the defence be taken into account and since the evidence has so far not been lead that no real prejudice would be caused to the other side. Reliance was placed on a decision of this Court in Erappa and Another v seethamma, as also on 3 other decisions, M/s. Modi Spinning and weaving Mills Company Limited and Another v M/s. Ladha Ram and company , Vineet Kumar v Mangal Sain Wadhera and S. Somashankarappa v Shah Misrimal Indramal. Petitioner's learned Advocate submitted that in sum and substance the Courts have always adopted a broad and liberal approach with regard to permitting of amendments and that even in some instances where the defence was sought to be added to or where the amendment was not strictly consistent with the original case made out, that it was also permitted. All that i need to observe with regard to the legal position is that the principles with regard to the amendments are very well-defined and very clear-cut. The Courts may permit amendments provided the application is within a reasonable time though there may be a few exceptional cases in which in the overwhelming interests of justice even a belated amendment may be permitted provided the reasons are very strong. There can be no two opinions with regard to the inflexible principle that if an amendment comes at a very late stage in a legal proceeding with the sole purpose of sabotaging the further hearing of the case or if the amendment contains anything which is wholly inconsistent with the original plea or contradicts it, that there will be a total bar in allowing such an amendment. Respondents' learned Counsel has relied on two decisions, Heeralal v kalyan Mal and Others, Biva's Private Limited v West Bengal Khadi and Village Industries Board , wherein the Supreme Court and the Calcutta high Court have upheld these principles and the Supreme Court had occasion to observe that where an amendment causes legal prejudice to the other side that it would certainly not be permissible.

(3.) IN the present instance, the original written statement made out a very clear defence to the effect that the property was a partnership asset, that the firm in question was dissolved in the year 1971 and pursuant to the dissolution that asset devolved on the present petitioner who is the defendant before the Trial Court. This written statement was filed in 1990 and after a lapse of 11 years, an entirely new case which totally nullifies and contradicts the earlier case is made out, viz. , that the property belonged to the father and that the father has left it to the son by virtue of the Will made in the year 1980. The further case made out is that the Will of the year 1980 was found only 48 days prior to august 2001. Once a statement is made that it was found in the house, thereafter another statement is made that it was found in the hotel but regardless of these contradictions the real question arises as to whether the petitioner can be permitted to voluntarily shift the defence and that too at a very belated stage. The law imposes prohibitions with regard to anything of this sort because the law also works on a principle of finality and if applications of this type are to be allowed there would be no end to the pleadings and that it would not be possible to finally ascertain as to what is the defence that is being made out. To quote a colloquial example, it is very similar to a monkey jumping from one branch of the tree to the other and changing its position all the time. Courts do not work on this basis because the parties and the Presiding Officers are required to know what precisely is the case, to hear it and adjudicate it and that is the fundamental reason why inconsistent amendments which make out new cases and the amendments which are hopelessly belated are impermissible. In any event, after the amendment to the cpc these practices have been totally deprecated and are no longer permitted.