K G MAL Vs. SHAM BUHARI MAL

JUDGEMENT

(1.) . Mr. K.G.Mal and Anr., by this Revision petition, have assailed the order of learned Additional District Judge, Delhi, dated 3.10.92, whereby his application seeking amendment of the written statement was dismissed inter alia on the ground that beside being belated, if allowed it would amount to withdrawing the admission already made.

(2.) . In short, the facts of the case are that Mr.Shyam Bihari Mal, respondent herein filed a suit claiming possession ofthe ground floor portion of property No. B-172, East of Kailash,New Delhi, against the present petitioners.In para 18 of fhe plaint the value of the suit for the purpose of court fee and jurisdiction was assessed at Rs.75,000.00 . The petitioners (defendants before the trial court) filed a written statement. In reply to para 18 of the plaint it was stated that the said para being legal needs no reply. Subsequent to the filing ofthe said written statement, the defendants moved an application seeking amendment of the written statement. The said application was filed on 16th May,1986. The amendment was allowed. Against that order the present respondent came up in Revision. The said revision was ultimately disposed of in 1989. Amended written statement was taken on record on 21.1.91. Even in the amended written statement in reply to para 18,it was mentioned that para under reply being legal needs no answer. It may also be mentioned that the present petitioners filed a suit against the present respondent in this High Court for enforcement of their right regarding their share in the joint family property, seeking declaration of title, partition and permanent injunction. That suit has been listed as Civil Suit No.159/86. The said suit was filed on 7.1.86 in the High Court. After having filed the amended written statement in January 1991, the case proceeded on merits. Parties were allowed to file further documents. It was in February,1992 that the present application was filed seeking amendment on the ground that the Court had no jurisdiction as the value of the property in question was about 6 lakhs, hence the suit has not been properly valued for the purposes of court fee and jurisdiction. It ought to have been valued at Rs.6 lacs. This application was contested by the plaintiff (respondent herein). After hearing the learned counsel for the parties, the trial court came to the conclusion that the amendment sought was not only belated but also amounted to withdrawl of the admission already made. It is against this impugned order that the present revision has been filed.

(3.) . Mr. R.C. Verma appearing for the petitioner contended that delay cannot be a ground for rejection of the amendment in the written statement. An amendment of the written statement cannot be treated at par with an amendment of the plaint. Courts have been very strict while allowing amendment in the plaint but the same yard-stick is not applicable when allowing amendment in the written statement. If the amendment is necessary and essential for proper adjudication of the case then the same can be disallowed at any state. So far as the proposition of law is concerned there cannot be any quarrel with the same. However, in the facts and circumstances of the present case, it cannot be said that the amendment sought was bonafide or in the absence of the same, case cannot be adjudicated. From the facts enumerated above it is clear that the petitioners filed suit for declaration, partition and injunction in the High Court on 7.1.86 wherein they fixed the valuation ofthe suit for purposes of court fee and jurisdiction at Rs.l51akhs. The first amendment to the written statement was sought on 16.5.86 i.e.after the filing of their suit in the High Court. This shows that by the time thefirst amendment was sought, the defendants were aware about the value of the suit property, yet in reply to para 18 of the plaint, they did not raise any objection about the value of the suit or regarding court's jurisdiction. Infact there is no denial of the value stated by the plaintiff ill para 18 of the plaint. No reason has been assigned by the petitioners as to why the question of valuation and jurisdiction was not taken up by them at the first instance when written statement was filed or when the first amendment was sought on 16.5.86. On the contrary as indicated above, in reply to para 18 ofthe plaint, the defendants did not deny specifically the value of the property for the purpose of court fees and jurisdiction as disclosed and fixed by the plaintiff. This amounted to admission of facts regarding valuation of the property on the part of the defendants. The non denial of the specific averments amounts to admission. It is a well settled principle of law that an admission once made cannot be withdrawn unless by that withdrawal no right had accrued infavour of the party or that by the said withdrawal no right had been taken away. Having admitted the value ofthe property now the petitioners cannot be permitted to challenge the same. As ageneral rule an amendment ought not to be refused if the applicant had acted bonafide, but such an amendment will be refused where the applicant has been acting with ulterior motive to prolong the litigation. In this case, I find that having admitted the valuation of the suit property and submitting to the jurisdiction of the Court, the petitioners by the present amendment are seeking to prolong the litigation. The principle that an amendment which introduces a different or inconsistent case or takes away any right which has accrued to the other party should not beallowed,on all force applies to the facts of this case. Byallowing this amendment the right which has accrued in favour of the respondent (plaintiff) would be taken away. As a matter of fact, the court has to be satisfied before allowing the amendment about the reasons offered, for not seeking such an amendment at the earliest. Moreover, the party must further satisfy the court as to why these objections were not originally taken, before it grants the amendment. As pointed out above, the petitioners have not given any reason what to talk of cogent reason as to why the valuation was not denied at the first instance or at least when first amendment was sought in May 1986,particularly when he himself by then had filed suit in the High Court alleging value of the property to be Rs.l5 lakhs.