SHER ALAM Vs. UNITED BANK OF INDIA

JUDGEMENT

(1.) Respondent bank which advanced money to revision petitioner on charge of immovable property filed a suit for recovery of the money on the charge and by the sale of the hypothecated property. Defendants initially filed written statement admitting the material facts in the plaint and praying that a decree may be passed allowing them to pay the decretal amount at a monthly installment of Rs. 2,000.00 and exempting them from paying future interest. Thereupon the plaintiff filed an application praying for decree to be passed on admission and also stating that the plaintiff was not agreeable to allow the defendants to pay the decretal amount in installments. Thereupon the defendants filed an application on 15-10-85 praying that either a decree may be granted allowing them the benefit of installment or they may be permitted to file a fresh written statement. This application is opposed by the plaintiff and dismissed by the trial Court. Hence this revision.

(2.) I have gone through the plaint and the written statement filed by the defendants. The defendants admitted the loan, the mortgage, the guarantee, the non-payment of the loan and the right of the plaintiff to enforce the mortgage. These admissions are contained in paragraphs 2 and 3. Paragraph 1 reads thus - "That the defendants admit the claim of the plaintiff." Paragraph 4 reads thus -

(3.) The claim for benefit of installment was resisted by the plaintiff and thereupon the defendants wanted either a decree with the benefit of installment as suggested by them or permission to file written statement contesting the suit. This application, it appears to me, was rightly dismissed by the trial Court. The defendants having filed a written statement admitting the material averments and claim in the plaint, cannot ordinarily be allowed to turn round and substitute the written statement by another written statement contesting the suit. The ordinary rule must give way in exceptional cases such as where a party is made to sign a pleading on account of fraud or compulsion or where his written statement is vitiated on account of any other legal infirmity. But there is no such plea in this case. Defendants sought to compel the plaintiff to allow repayment in installments under threat of filing a written statement contesting the suit. That could not have been allowed by the Court below.