NINGE GOWDA Vs. SAHADEVAN

JUDGEMENT

(1.) the short point that arises for determination in this proceeding centres around the question as to whether an application for amendment of a written statement should be permitted if it is demonstrated that through such an amendment, the original case made out would be sufficiently altered to the extent of virtually making out a new case and at the same time, totally nullifying the effect of admissions earlier contained in the written statement. Briefly stated, the 5th defendant to the suit, which was one for specific performance, had filed his written statement in which there was an admission to the effect that an agreement had been entered into for sale of the property in the year 1985. This was precisely the plaintiff's case and the suit for specific performance was based on this agreement and the admission on the part of defendant 5 constituted material on which the plaintiff would place reliance. Subsequently, the 5th defendant presented the application for amendment whereby he sought to contend that he was a tenant since the year 1977 and that through an earlier agreement, the owner had agreed to sell the property to him and that he was put in possession by way of part performance. The plaintiff opposed the application for amendment on the ground that it radically altered the case that was originally made out and also on the ground that the 5th defendant was making out an entirely new case which detracted violently from what it originally was and more importantly, that the earlier admission was now sought to be nullified. In support of this last contention, it was demonstrated that through the proposed amendment it was sought to be contended that since an earlier agreement in favour of defendant 5 existed, that no agreement could have validly been entered into in the year 1985.

(2.) the learned trial judge after hearing the parties rejected the contention that a new case was being made out and a perusal of his order indicates that he has unfortunately misconstrued the averments in the proposed amendment to the extent that he was misled to believe that the reference to the agreement in the proposed amendment is the same agreement of 1985. The petitioner's learned Advocate has demonstrated to me that but for this error, the amendment would never have been allowed. The trial court having come to the conclusion that the amendment referred to the same agreement has recorded the finding that no new case is being made out which position is erroneous.

(3.) petitioner's learned advocate relied on the decision of the Supreme Court in M/s. Modi Spinning and Weaving Mills Co.Ltd. And another v M/s. Ladha Ram and Co., wherein the supreme court categorically held that an application for amendment of a written statement which introduces an entirely different and new case seeking to displace the petitioner completely from admissions made by the defendants in the written statement was liable to be rejected. The Supreme Court had occasion, while construing the Provisions of order 6, Rule 17, C.P.C. to observe that even though inconsistent pleas can be made in pleadings, it would not be permissible to allow an amendment where a plaintiff will be irretrievably prejudiced by being denied the benefit of the admission earlier made. The learned Advocate submitted that even though an application for amendment is normally not opposed, that this was one of the cases where the effect of the amendment was so far-reaching and disastrous to the plaintiff, that it would be destructive of the plaintiff's very case and that therefore, that it was essential for this court to intervene in the matter as there is a clear error of law apparent in the order of the trial court.