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Neutral Citation No. - 2024:AHC:65964

A.F.R.

RESERVED

In Chamber

Case :- MATTERS UNDER ARTICLE 227 No. - 9337 of 2023

Petitioner :- Smt. Chanda Kedia And Another

Respondent :- Dwarika Prasad Kedia And Another

Counsel for Petitioner :- Tarun Agrawal

Counsel for Respondent :- Suresh Singh,Rahul Agarwal,Ritesh

Singh

Hon'ble Jayant Banerji,J.

1.Heard Shri Tarun Agarwal, learned counsel for the petitioners

and Shri Rahul Agarwal, learned counsel appearing for both the

respondents. Learned counsel for the respondents stated that the

relevant records of the suit are on record and so he does not propose

to file a counter affidavit. Therefore, with the consent of the

advocates for the parties, the petition was heard and judgment

reserved.

2.By this petition, an order dated 26.7.2023 passed by the

Additional District Judge, Fast Track Court No. 2 (14th Finance

Commission), Gorakhpur, in Civil Revision No. 3 of 2023 (Shri

Dwarika Prasad Kedia and another Vs. Smt. Chanda Kedia and

another) has been challenged, whereby an order dated 16.12.2022

passed by the trial court in Original Suit No.458 of 2017, rejecting the

amendment application 68क-2 filed by the defendant no.1 for

amending the joint written statement, was set aside and the matter

was remanded to the trial court for deciding the amendment

application afresh and on its merits.

3.The background of the case, as evinced from the record of this

petition, is that on 1.7.1987, an agreement was entered into between

seven persons (family members) at Gorakhpur with regard to pooling

their resources and joining hands for purposes of constructing

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godowns on land owned by Mathura Prasad Kedia (who was the party

No. 1 in the aforesaid agreement) which land was situated at village

Ram Nagar, Karjaha, Gorakhpur, and at other places in co-ownership

in the proportions mentioned in the agreement and letting out the

same on rent to be enjoyed by the parties individually in the same

proportion in which they would own the godowns. It was mentioned

in the agreement that the land required for construction of the

godowns shall be provided by Shri Mathura Prasad Kedia, who

owned the land aforesaid situated at village Ram Nagar, Karjaha,

Gorakhpur. It was agreed that the entire activity relating to the

construction of the godowns and letting them out on rent would be

carried on on co-ownership basis with a clear stipulation that each

one of the parties to the agreement and/or their successors and assigns

shall have such proportions therein as specified in the agreement.

4.After death of Mathura Prasad Kedia, another agreement dated

29.1.1996 was executed between seven parties in respect of the

godown and the aforesaid land. Aggrieved by certain unilateral

activities being taken by some of the parties to the aforesaid

agreements, the plaintiff-petitioners, who were also the signatories of

the aforesaid two agreements, filed a suit seeking injunction against

the defendant-respondents from letting out on rent the properties

mentioned in the agreement in their own name and further restraining

them from entering into any agreement on their own. The aforesaid

suit was registered as Original Suit No. 458 of 2017 which was filed

in the court of the Civil Judge (Senior Division), Gorakhpur. A joint

written statement dated 19.3.2018 was filed by the defendant-

respondents.

5.It is pertinent to mention here that the defendant-respondent

No.1, Dwarika Prasad Kedia, was not a signatory to the agreement of

1.7.1987, but was a signatory to the agreement dated 29.1.1996.

However, the defendant-respondent No.2, Prem Lata Kedia, was a

signatory to both the aforesaid agreements.

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6.A temporary injunction application filed by the plaintiff-

petitioners was dismissed by an order dated 23.12.2021, passed by the

Additional District and Sessions Judge, Fast Track Court, Gorakhpur

in Miscellaneous Appeal No. 18 of 2021 (Dwarika Prasad Kedia and

another Vs. Smt. Chanda Kedia and another). The order of the Judge

was subjected to challenge before this Court in a petition being

Matters under Article 227 No. 1221 of 2022, which came to be

allowed by a judgment and order dated 21.7.2022, setting aside the

order dated 23.12.2021 and directing the trial court to expedite the

disposal of the Original Suit No.458 of 2017 without being influenced

with the observations made in the judgment.

7.Thereafter, an application dated 14.10.2022, bearing paper No.

68 क-2, was filed by defendant-respondent No.1 under Order VI Rule

17 CPC seeking amendment in the written statement. It was stated in

the application that the father of defendant-respondent No.1, Mathura

Prasad Kedia, had executed a will which was kept with his income

tax lawyer and which was received after the death of Mathura Prasad

Kedia, and on the basis of that will, the aforesaid agreement dated

29.1.1996 was made, but no reference was made of that will by the

earlier advocate, due to which certain things were vague and the suit

could not be correctly and finally decided unless the averments were

clarified and, accordingly, the amendments were necessary.

8.By way of an objection paper No.72C, along with a supporting

affidavit dated 18/19.11.2022, objections were filed by the plaintiff-

petitioners, in which it was stated that the averments made in the

written statement are sought to be nullified by the amendment and a

new defence is sought to be set up on the basis of a fraudulent will

deed. It was further stated that no details of the will have been

mentioned in the amendment application which, therefore, deserves

to be dismissed.

9.By an order dated 16.12.2022, the trial court rejected the

application for amendment. Aggrieved against the same, Civil

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Revision No. 3 of 2023 was filed by the defendants, which came to be

allowed by means of the impugned order dated 26.7.2023 which

remanded the matter back to the trial court for consideration of the

application 68क-2 afresh.

10.The contention of the learned counsel for the petitioners is that

the amendments sought in the written statement run contrary to the

existing averments in the written statement and false statements have

been made in the amendment application with regard to the alleged

will executed by deceased Mathura Prasad Kedia. It is further stated

that the narrative of the written statement is sought to be changed by

bringing in new facts, based upon a fraudulent will, the details of

which were not mentioned in the amendment application. It is further

contended that the amendment to the written statement has been filed

by only the defendant-respondent No.1 and not jointly by both

defendants and, therefore, the amendments sought by only one of the

defendants deserve to be rejected.

11.In support of his contention, learned counsel for the petitioners

has relied upon a judgment of a coordinate Bench of this Court in the

case of Narendra Singh vs. Bhartendra Singh

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.

12.Shri Rahul Agarwal, learned counsel for the respondents has

stated that the objections of the plaintiff-petitioners are based upon

the merits of the amendment application, which cannot be gone into

at the stage of consideration of the amendment application itself. It is

contended that the objections do not have any relation with the fact as

to whether the amendment ought to be allowed in terms of Order VI

Rule 17 CPC; that clarification of the written statement is required to

ensure that the case is correctly decided and taken to its logical

conclusion; that the judgment relied upon by the learned counsel for

the petitioners cannot be read as laying down a ratio decidendi of the

proposition that when a written statement is jointly filed by the

12000 (1) AWC 719

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defendants, it cannot be amended at the behest of one, when the other

defendant does not join him.

13.A joint written statement dated 19.3.2018 was filed by the two

defendants. The aforesaid amendment application dated 14.10.2022

was filed by the defendant no. 1 alone, seeking to incorporate

paragraph nos. 24अ, 24ब, 24स, 24द, 24य, 24र, 24ल after

paragraph no.24 of the written statement. The amendment application

is as follows.

"न्यायालय िसिविल जज सी०डिडि०ड गोरखपुर

विाद सं०ड- 458/2017

श्रीमती चन्दा केड िडिया बनाम द्वािरका प्रसाद केड िडिया आदिद

दरखास्त अन्तग

रत आददेडश

6 िनयम 17 जा०डदी०ड

उपरोक्त मुकदमा म

े िनविेडदन है िक प्रितविादी द्वारा पुरानेड अिधिविक्ता को बदल

कर नया अिधिविक्ता िनय

ुक्त िकया गया और अपील केड उपरान्त जब मूलविाद संचालन

की बात आदयी तो विरविक्त तैयारी मुकदमा यह बात प्रकाश म

े आदई है िक प्रितविादी

नं०ड1 केड िपता मथुरा प्रसाद केड िडिया नेड अपनेड जीविनकाल म

े एक विसीयत िलख रखा

था और उस बसीयत को अपनेड इन्कम टैक्स विकील श्री जी०डएस०डसरकारी केड पास

रख छोडिा था जो बाद मरनेड मथुरा प्रसाद केड िडिया केड विह विसीयत प्राप्त हो गई िजसकेड

आदधिार पर समझौता पत्र िदनांक 29-1-1996 बना और उसका कोई िजक

प्रितविादपत्र म

े पुरानेड अिधिविक्ता द्वारा नहीं िकया जा सका है िजसकेड कारण कुछ

अस्पष्टता आदिरज है िजसेड यिद स्पष्ट नहीं िकया गया तो मुकदमेड म

े सही वि अिम न्तम

नतीजेड तक नहीं पह

ुंचा जा सकता है। मुकदमेड केड सही वि अिम न्तम नतीजेड तक पहुंचनेड

केड िलए प्रितविादपत्र म

े संशोधिन िकया जाना न्यायोिचत एविं न्यायसंगत है।

अतः प्राथ

रना है िक प्रितविादपत्र मे िनम्न संशोधिन करनेड की अनुमित िदया

जाय।

1- यह िक प्रितविादपत्र केड पैरा 24 केड बाद नया पैरा, 24अ, 24ब, 24स,

24द, 24य, 24 र, 24ल को िनम्न प्रकार सेड दज

र करनेड की अनुमित िदया

जाविेडः-

‘24अ- यह िक प्रितविादी नं०ड1 केड िपता मथुरा प्रसाद केड िडिया नेड अपनेड जीविनकाल

म

े अपनी प्रथम वि अिम न्तम विसीयत िलख कर अपनेड इनकम टैक्स केड विकील

जी०डएस०डसरकारी को देड रखा था जो बाद विफात मथुरा प्रसाद केड िडिया केड अिधिविक्ता

महोदय नेड पिरविार म

े प्रितविादी नं०ड

2 केड पित छज्जूराम केड िडिया वि पिरविार केड लोगो

केड समक्ष प्रस्तुत िकया और उस समय प्रितविादी नं०ड2 केड पित वि पिरविार केड लोगो नेड

मथुरा प्रसाद केड िडिया केड अिम न्तम इच्छानुसार रामनगर कड़जहा गोरखपुर की जो

गोदाम की जमीन थी विह उनकी पत्नी श्रीमती नानीबाई केड िडिया केड नाम चढ जाय

और यिद मथुरा प्रसाद केड िडिया केड जीविनकाल म

े ही नानीबाई केड िडिया का देडहान्त हो

जाता है उस िम स्थित म

े मथुरा प्रसाद केड िडिया केड तीनो लड़को का नाम चढ जायेडगा।

'

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‘24 ब- यह िक इसी प्रकार मथुरा प्रसाद केड िडिया की जो पूँजी एम०डकेड ०ड प्रापटी म

े

लगी है विह द्वािरका प्रसाद केड िडिया को िमलेडगा और गोदाम केड िकराएं म

े उनका िहस्सा

हो जायेडगा।’

‘24 स- यह िक उक्त विसीयतनामा केड आदधिार पर आदपसी समझौता पत्र िदनांक

31-1-1996 को तैयार ह

ुआद और उसमे मथुरा प्रसाद केड िडिया केड अिम न्तम

इच्छानुसार गोदाम की जमीन श्रीमती नानीबाई केड िडिया केड नाम चढविा िलया जाय,

का समझौता ह

ुआद।’

‘24 द- यह िक उक्त विसीयतनामा केड आदधिार पर नानीबाई केड िडिया गोदाम की

सम्पूण

र जमीन की स्विामी मािलक चली आद रही है और उन्हे उस जमीन का पूणर

अिधिकार प्राप्त हो चुका है कत्तई िकसी अन्य सेड कोई विास्ता सरोकार नहीं है।’

‘24 य- यह िक विादी नं०ड 1 केड पित वि विादी नं०ड 2 केड िपता िगरधिारी लाल केड िडिया

प्रितविादी नं०ड1 सेड बड़ेड है जौ विह काफी चालाक वि मुतफन्नी व्यिक्त है और विह

जानबूझकर विसीयतनामा जो मथुरा प्रसाद केड िडिया द्वारा िलखा गया था को जानतेड

ह

ुए उसका कोई िजक विादपत्र मे नहीं िकया है इसकेड िविपरीत कथन विादी िबलकुल

गलत वि झूठ है।’

‘24र- यह िक प्रितविादी एविं विादी नं०ड 1 केड पित वि विादी नं०ड 2 केड िपता नेड इसी

आदधिार पर िदनांक 29-1-1996 का समझौतापत्र तैयार िकया और पुनः एक

पािरविािरक व्यविस्था याददाश्त िदनांक 11-9-2001 को िलखा गया।

‘24 ल- यह िक याददाश्तनामा िदनांक 11-9-2001 केड आदधिार पर िजस पर

नानीबाई केड िडिया, िगरधिानी लाल केड िडिया, वि प्रेडमलता केड िडिया वि द्वािरका प्रसाद

केड िडिया केड हस्ताक्षर बनेड है, केड आदधिार पर रामनगर कडिजहा की िम स्थत सम्पित्त को

नानीबाई केड िडिया नेड प्रितविादीगण केड िहस्सेड म

े

–

½ ½

देड िदया और इस आदधिार पर

प्रितविादीगण िविविािदत सम्पित्त केड आदधिेड आदधिेड केड स्विामी मािलक कािबज दखील चलेड

आद रहेड है।‘

‘24 वि- यह िक इस प्रकार तथाकिथत साझेडदारी, समाप्त हो चुकी है और उसका

कोई लाभ विादीगण प्राप्त करनेड केड अिधिकारी नहीं है।‘

म

ै द्वािरका प्रसाद केड िडिया

, प्रितविादी सं०ड 1 प्राथी

तसदीक करता ह

ूँ िक संशोधिन आदविेडदन

(द्वािरका प्रसाद केड िडिया)

केड क

ुल मजमून मेडरेड िनजी जानकारी सेड

प्रितविादी सं०ड 1

सत्य है तसदीक िकया बमुकाम दीविानी िदनांक- 14.10.22

कचहरी गोरखपुर।

(द्वािरका प्रसाद केड िडिया)”

14.By an order dated 16.12.2022, the Civil Judge (Senior

Division), Gorakhpur proceeded to reject the application for

amendment, 68क-2, evidently after analyzing the merits of the

amendments sought.

15.The revisional court, by the impugned order dated 26.7.2023,

set aside the order dated 16.12.2022 passed by the trial court and

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directed it to decide the matter afresh in the light of the observations

made. The court observed that it is a matter of evidence whether the

Will-deed that is sought to be produced is legal or not and

amendment to the written statement should be liberally construed as

it is neither changing the nature of the written statement nor

withdrawing any admission, and that the trial of the suit had not

started.

16.There cannot be a cavil about the legal proposition that while

considering an amendment application, a court ought not to enter into

the merits of the amendment itself, but rather confine its inquiry for

the purpose of determining whether the same is necessary for the

purpose of determining the real question in controversy between the

parties; to determine that the application is not malafide or an attempt

to delay the proceedings; and to determine that the defendant is not

attempting to set up a case that would rescind an admission made by

him in the written statement. The analysis made by the revisional

court is sound and logical, and the order of the trial court was

justifiably set aside and the matter remanded.

17.However, a legal issue that is being sought to be raised by the

learned counsel for the petitioners is that a joint written statement was

filed by the defendants, therefore, it cannot be amended at the behest

of one defendant when the other defendants did not join him in filing

the amendment application.

18.As stated above, learned counsel for the petitioners has relied

upon the judgment of Narendra Singh (supra). Orders VI and VIII of

the Code of Civil Procedure, 1908

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do not answer the issue raised by

the learned counsel for the petitioners. The word 'party' appears in

Order VI, Rule 17 CPC refers to either the plaintiff or plaintiffs on

one side and the defendant or defendants on the other side.

19.The amendment to the written statement has only been sought

by the defendant no.1, who claims to have come into possession by a

2CPC

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Will allegedly executed by his father, Mathura Prasad Kedia. It

appears from the amendment sought that the aforesaid Will has been

referred to as the first and last Will of the testator that the property in

dispute was bequeathed to the testator's wife, Nani Bai Kedia, and in

the event of her death prior to the death of the testator, it would

devolve on the three sons of the testator; the investment of Mathura

Prasad Kedia in M.K. Properties would go to Dwarika Prasad Kedia

(defendant-respondent no.2) and that shall become his share in the

rent of the godown; that on the basis of the said Will-deed, the mutual

settlement letter dated 31.1.1996 was prepared and in that, as per the

last Will of Mathura Prasad Kedia, on the land of godown, the name

of Smt. Nani Bai Kedia be entered; that on the basis of Will-deed,

Nani Bai Kedia became the owner of the entire land of the godown

and she had received full rights with regard to that, and no other

person has got any concern with that; that the husband and father

respectively of the plaintiff-petitioner nos.1 and 2, Girdhari Lal

Kedia, was elder to the respondent no.1 and was a cunning person

and had deliberately not referred to the Will-deed of Mathura Prasad

Kedia in his plaint; that on this very basis, the defendant and the

husband/father of the plaintiff-petitioner nos.1 and 2 got prepared the

settlement dated 29.1.1996 and also a memorandum of family

settlement dated 11.9.2001; that on the basis of memorandum dated

11.9.2001, the property situated at Ram Nagar, Karjaha, Nani Bai

Kedia has given ½ – ½ share each to the defendants and as such, the

defendants have become ½ – ½ owners of the property in dispute;

that the so-called partnership has come to an end and no benefit of

that inures to the plaintiff-petitioners.

20.The observation of the Court in the judgment in Narendra

Singh, cited by the learned counsel for the petitioners, bars

amendment of the written statement at the behest of one defendant

when the written statement was jointly filed by all the defendants.

Paragraph 5 of the judgment reads as follows:-

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“5.After perusing the written statement filed by the

defendant Nos. 1. 2 and 3 as well as the amendment, it seems

that the main ingredient which has been sought to

incorporate by amendment, are already present in the written

statement and the statement made in the written statement

appears to be in the context of the suit, inasmuch as in the

suit the plaintiff has based his claim on the registered deed of

partition dated 23rd March, 1974 alleged to have been acted

upon. The defendants have denied the same. In such

circumstances, it is not necessary to incorporate the

amendments which are unnecessary elaboration of the

defence already pleaded in the written statement. Even

without the amendment, those facts relating to the question

as to whether the deed of partition dated 23rd March, 1974

was genuine or acted upon, as has been pleaded In the

written statement itself, can be gone into. The suit was filed

some times in 1979, almost 20 years have lapsed. The

defendant No. 4, being the son of the defendant No. 1 is

sailing in the same boat. He had attempted to incorporate

almost identical amendment, once having refused, cannot be

brought in by the defendant No. 3 alone in the joint written

statement filed by the defendant Nos. 1, 2 and 3 when the

defendant Nos. 1 and 2 had not joined him. An amendment

of written statement jointly filed by the defendant Nos. 1, 2

and 3 cannot be entertained when filed by only one of them.

When the written statement was jointly filed by all the

defendants it cannot be amended at the behest of one when

other two defendants do not join him.”

21.The contention of the learned counsel for the

respondents/defendants that the observation in the judgment of

Narendra Singh (supra), that when a written statement is jointly

filed by the defendants, it cannot be amended at the behest of one

defendant when other defendants do not join him, cannot be read as a

ratio decidendi, does not appear to be correct.

22.In the matter of Jayant Verma & Ors. vs. Union of India &

Ors.

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, the Supreme Court, inter alia, also considered a question in

paragraph no.53 of that judgment to the effect that could it be said

that a previous judgment of the Supreme Court is a declaration of the

law under Article 141 of the Constitution, which as a matter of

practice, the subsequent bench cannot differ from, being a bench of

co-ordinate strength? The Supreme Court considered the question

from various perspectives, one of them being the ratio decidendi of a

3(2018) 4 SCC 743

10

case. The Supreme Court considered and followed its judgment in the

case of Dalbir Singh & Ors. vs. State of Punjab

4

as follows:-

“55. In Dalbir Singh v. State of Punjab [Dalbir Singh v. State

of Punjab, (1979) 3 SCC 745 : 1979 SCC (Cri) 848 : (1979)

3 SCR 1059] , a dissenting judgment of A.P. Sen, J. sets out

what is the ratio decidendi of a judgment : (SCC p. 755, para

22 : SCR pp. 1073-74)

“22. … According to the well-settled theory of

precedents every decision contains three basic

ingredients:

‘(i) findings of material facts, direct and inferential.

An inferential finding of facts is the inference which

the Judge draws from the direct or perceptible facts;

(ii) statements of the principles of law applicable to

the legal problems disclosed by the facts; and

(iii) judgment based on the combined effect of (i) and

(ii) above.’

For the purposes of the parties themselves and their

privies, ingredient (iii) is the material element in the

decision for it determines finally their rights and

liabilities in relation to the subject-matter of the

action. It is the judgment that estops the parties from

reopening the dispute. However, for the purpose of the

doctrine of precedents, ingredient (ii) is the vital

element in the decision. This indeed is the ratio

decidendi. [R.J. Walker & M.G. Walker : The English

Legal System. Butterworths, 1972, 3rd Edn., pp. 123-

24.] It is not everything said by a Judge when giving

judgment that constitutes a precedent. The only thing

in a Judge's decision binding a party is the principle

upon which the case is decided and for this reason it is

important to analyse a decision and isolate from it the

ratio decidendi. In the leading case of Qualcast

(Wolverhampton) Ltd. v. Haynes [Qualcast

(Wolverhampton) Ltd. v. Haynes, 1959 AC 743 :

(1959) 2 WLR 510 : (1959) 2 All ER 38 (HL)] it was

laid down that the ratio decidendi may be defined as a

statement of law applied to the legal problems raised

by the facts as found, upon which the decision is

based. The other two elements in the decision are not

precedents. The judgment is not binding (except

directly on the parties themselves), nor are the

findings of facts. This means that even where the

direct facts of an earlier case appear to be identical to

those of the case before the court, the Judge is not

bound to draw the same inference as drawn in the

earlier case.”

4(1979) 3 SCC 745

11

23.The aforesaid judgment of the Supreme Court in Jayant

Verma has been referred and followed in the matter of Career

Institute Educational Society vs. Om Shree Thakurji Educational

Society in the order dated 24.04.2023 passed in Petition for Special

Leave to Appeal (C) No.7455-7456/2023.

24.As a matter of fact, in the aforesaid case of Career Institute

Educational Society, another judgment of the Supreme Court in the

case of State of Gujarat & Ors vs. Utility Users Welfare

Association & Ors.

5

was considered, in which judgment the

inversion test was applied by the Supreme Court to identify what is

the ratio decidendi in a judgment. The observations of the Supreme

Court, while referring to the cases of Utility Users Welfare

Association and Jayant Verma, are as follows.

“The distinction between obiter dicta and ratio

decidendi in a judgment, as a proposition of law, has been

examined by several judgments of this Court, but we would

like to refer to two, namely, State of Gujarat & Ors. vs.

Utility Users’ Welfare Association & Ors. and Jayant Verma

& Ors. vs. Union of India & Ors.

The first judgment in State of Gujarat (supra) applies,

what is called, “the inversion test” to identify what is ratio

decidendi in a judgment. To test whether particular

proposition of law is to be treated as the ratio decidendi of

the case, the proposition is to be inversed, i.e. to remove

from the text of the judgment as if it did not exist. If the

conclusion of the case would still have been the same even

without examining the proposition, then it cannot be

regarded as the ratio decidendi of the case.

In Jayant Verma (supra), this Court has referred to an

earlier decision of this Court in Dalbir Singh & Ors. vs. State

of Punjab to state that it is not the findings of material facts,

direct and inferential, but the statements of the principles of

law applicable to the legal problems disclosed by the facts,

which is the vital element in the decision and operates as a

precedent. Even the conclusion does not operate as a

precedent, albeit operates as res judicata. Thus, it is not

everything said by a Judge when giving judgment that

constitutes a precedent. The only thing in a Judge's decision

binding as a legal precedent is the principle upon which the

case is decided and, for this reason, it is important to analyse

a decision and isolate from it the obiter dicta. ”

5(2018) 6 SCC 21

12

25.While applying the aforesaid test in the judgment of Narendra

Singh, the ratio as emerges therefrom would be that where the case of

the defendants is being presented by means of a joint written

statement, which is a reflection of their joint defence in the suit, filing

of an amendment application by one or more defendants to the

exclusion of other defendants, who had preferred that joint written

statement, would be barred. If the inversion test is applied in the

judgment of Narendra Singh, and the ratio indicated in paragraph 5

thereof is removed, then without examining the proposition, the

conclusion of the case would not be the same. Further, given the legal

problem disclosed by the facts as appearing in the judgment of

Narendra Singh, the observation of the learned Judge that one of the

defendants cannot be permitted to amend the written statement when

the other defendants do not join him, who all had jointly filed the

written statement, would operate as a precedent.

26.Now, I proceed to discuss further the aspect pertaining to

maintainability of an amendment application at the behest of a

defendant where the written statement has been jointly filed by all the

defendants, given the observation of a bench of this Court in

Narendra Singh. In the case of Narendra Singh, the three

defendants therein had filed a joint written statement. Subsequently,

the defendant no.4, who was the son of one of the defendants, was

added as a party and he filed a separate written statement. The

defendant no.4 sought to amend the written statement which was

refused by the court by an order dated 3.8.1994. Thereafter, the

defendant no.3 filed an application for amendment of the written

statement, which was also dismissed by the order dated 21.9.1996

which order was impugned in the case of Narendra Singh. The

Court noted that in the suit, it was not necessary to incorporate the

amendment which was unnecessary elaboration of the defence

already pleaded in the written statement. It was observed that even

without the amendment, the fact relating to the question as to the

genuineness of a deed of partition or it being acted upon, as had been

13

pleaded in the written statement itself, could be gone into. It was

observed that defendant no.4 being the son of defendant no.1 was

sailing in the same boat and he had attempted to incorporate almost

identical amendment, which once having been refused, cannot be

brought in by the defendant no.3 alone in the joint written statement

filed by the defendant nos.1, 2 and 3 when the defendant nos.1 and 2

had not joined him. It was held that when the written statement was

jointly filed by the defendants, it cannot be amended at the behest of

one when the other two defendants do not join him.

27.Filing of joint written statement by all or several defendants is

not an uncommon feature in suits. Frequently, a group of defendants

having common interests choose to file a joint written statement. At a

later stage in the suit, one or more of the defendants, or their

successors/legal representatives who step into their shoes, may seek

to raise by amendment new grounds of defence that may have arisen

after the institution of the suit or the presentation of a written

statement or seek any other amendment including a set-off or

counter-claim. Whether such an amendment application can be

moved by one or more defendants, to the exclusion of the other

defendants, by way of amendment in the joint written statement, is

required to be considered. Another aspect that may require

consideration is whether an amendment application by one or more

defendants would be maintainable, to amend a joint written statement

which amendment may reflect the interests of each of the defendants

who had filed the joint written statement.

28.A bench of Karnataka High Court at Bengaluru in the case of

Sri R.D. Suresh @ Manjunath & Ors. vs. Sri R.A. Manjunath &

Ors.

6

considered a matter where the defendant nos.1 to 5 had filed a

common written statement on the basis of a Will and a partition that

took place in terms of the said Will. The defendant no.4 filed an

additional written statement seeking to assert a counter-claim which

was dismissed by the trial court. Also, the defendant no.3 filed an

6Writ Petition No.34252-57 of 2014 (GM-CPC) decided on 24.6.2015

14

application seeking leave of the court to file an additional written

statement alongwith additional written statement under Order VIII

Rule 9 CPC pertaining to the theme of codicil of the testator. The trial

court allowed that application which was challenged in Writ Petition

Nos.18767-68 of 2010 before the Karnataka High Court which was

allowed and the additional written statement so far as it related to

codicil was set aside but liberty was reserved to file an amendment

application. Thereafter, the defendant no.3 filed an application

seeking amendment to incorporate the pleadings relating to codicil

which was allowed by the trial court. Challenging that order, Writ

Petition No.33997 of 2010 was filed before the High Court which

was allowed and the order of the trial court allowing the amendment

was set aside. As a next resort, the defendant no.3 filed an application

under Order VIII Rule 8 read with Section 151 CPC seeking leave of

the trial court to file a separate written statement. The application was

allowed. Challenge to the same was made before the High Court in

the aforesaid case of R.D. Suresh, wherein the observations of the

Court are as follows:-

“14.The point that arises for consideration is, whether the

impugned order passed by the court below permitting filing

of separate written statement by the third defendant calls for

interference by this Court? My answer would be in the

affirmative for the following reasons.

15.In this case, as already stated, the defendant No.3 has

made three attempts to bring on the same pleadings. Initially

by way of additional written statement, next by way of

amendment and now by way of a separate written statement.

On the two occasions, the orders passed by the trial court

allowing additional written statement and allowing

amendment application were subject matter of writ petition

Nos.18767-768/2010 and W P No.33997/2010. This court by

the order dated 27.7.2010 and 27.3.2014 respectively set

aside both the orders. Now by way of the present application,

the third defendant wanted to bring on record the same

pleadings but by way of separate written statement, which is

also allowed by the court below by the impugned order.

16. It is to be mentioned here that the third defendant

joined defendants 1 & 2 and 4 & 5 and filed common written

statement and pleaded earlier partition in the year 1988

among the legatees by virtue of the Will dated 3.5.1969.

Now the present application is filed by the defendant No.3

alone to contend right over landed properties in question as if

15

his father late R S Amarendra had one-fourth share who died

intestate, there is no partition in 1988 amongst legatees

basing the said claim on the basis of codicil dated 10.6.1969

said to have been executed by Sri R V Surappa, now

deceased. The third defendant stated that he noticed the

codicil only when the room of R V Surappa was cleaned up

on 11.3.2008.

17. In the order passed in W P No.18767-768/2010 (GM-

CPC) and connected matters disposed of on 27.7.2010 in

Para-12, it is stated as follows:

"12. The them of the codicil is raised for the first

time in the additional written statement. I therefore set

aside that part of the trial Court's order permitting the

additional written statement, which pertains to the

codicil. In all other respects, the Trial Court's order

and the consequent filing of the additional written

statement are left undisturbed".

Therefore, it is clear that averment relating to codicil is

rejected by this Court in the above order.

18.In the order dated 27.3.2014 passed in W P

No.33997/2010 (GM-CPC) in Para-28, this is what stated by

this Court:

"28.......when joint written statement has been filed,

one of the defendants cannot be allowed to take

inconsistent stand without the consent of the other

defendants. The co-defendants are disputing the

codicil. Therefore, the Trial Court was not justified in

allowing the application. While it is true, amendments

have to be considered liberally. But, it depends upon

the facts and circumstances of each case. In the

present case, the proposed amendment lacks bona

fides and it is highly belated. Therefore, the impugned

order cannot be sustained in law."

19.Therefore, it is clear that the averments relating to

codicil is already rejected and it is held to be belated. In none

of the provisions of Code of Civil Procedure, it is provided

for replacement of the written statement filed by a party. The

separate written statement sought to be filed by the third

defendant is inconsistent and in complete variance with the

averments made in the joint written statement filed by him

along with the other defendants. The other defendants are not

in agreement with the theory of codicil and they are the

petitioners in the present writ petitions.

20.…..........

21.The learned counsel and senior counsel for the

respondents submit that there is no patent illegality or

violation of principles of natural justice in the impugned

order and only an opportunity is given to the party to bring

on record the subsequent event and therefore this court

cannot interfere in such matters under its supervisory

jurisdiction. I have given my anxious consideration to the

16

contentions and the authorities on which reliance was placed

and I am of the view that the third defendant alone is not

legally entitled to file a separate written statement when he

has already filed joint written statement and the said other

defendants are not in agreement with the proposed pleadings

which are in complete variance from the original pleadings,

this court is definitely entitled to interfere with such an order

to correct the same. The trial court has proceeded only on the

basis that if the third defendant is not provided opportunity to

bring on record the proposed averments by way of separate

written statement, it would lead to multiplicity of

proceedings. The court below has failed to consider the other

facts of the case where the third defendant has already filed

common written statement, other defendants are not in

agreement with the proposed pleadings, delay in filing such

application, proposed pleadings being in complete variance

with the original pleadings and the principles of res judicata.”

(emphasis by Court)

29.The aforesaid two judgments in Narendra Singh's case and

R.D. Suresh's case were followed by a bench of the High Court of

Manipur at Imphal in the case of Dr. M.S. Abdul Khaliq Chishti &

Anr. vs. Sheikh Abdul Hye Chishti & Ors.

7

30.In the present case, the amendment sought is with regard to the

share in the rent of the property in dispute which, in turn, it is

contended, is based on the entitlement to the ownership of the

property in dispute. Though in a paragraph of the amendment

application, the share of the defendants has been stated to be ½ – ½

each with regard to the suit property, pursuant to a bequest in favour

of Smt. Nani Bai Kedia, which bequest is apparently based upon a

Will of Mathura Prasad Kedia, however, that Will would also be

subject to proof. That may also entail consideration of the fact

whether the bequest in favour of Smt. Nani Bai Kedia was a bequest

for her life time or was it absolute. Under such circumstances, there

may arise issues in the future with regard to the entitlement of the

defendant no.2, who has not joined in filing the aforesaid amendment

application. There is no averment in the amendment application that

whether any consent was obtained by the defendant no.1 from the

72016 SCC Online Manipur 1

17

defendant no.2 in filing the aforesaid application for amendment.

Thus, without a joint application for amendment or without consent

of the defendant no.2 with regard to the application for amendment,

the amendment application seeking amendment of a joint written

statement, if allowed, may prejudice the rights of the defendant no.2.

As such, the amendment would not be permissible and the ratio of

Narendra Singh would squarely apply.

31.There may be various other instances where a serious anomaly

may be created by one defendant filing an amendment application

leading to jeopardizing the rights and interests of other defendants,

who join in filing a written statement. For example, one of them may

seek to withdraw an admission made in the joint written statement, or

may choose to make an admission. Moreover, such an amendment

application may contain averments which may be couched in

language that may seem to, ostensibly, serve the interest of all

defendants who had joined in the written statement, but may require

closer scrutiny by other defendants to understand and verify the

averments made.

If the Courts are not vigilant to nip in the bud such a situation

from arising, several complications may arise in the future that may

complicate issues and unnecessarily delay the outcome of the

suit/proceedings including multiplicity of legal proceedings.

32. It is, therefore, held that where a written statement is jointly

filed by a group of defendants, it cannot be amended at the behest of

one or more such defendants unless the other defendants who are

signatories to the joint written statement, expressly consent to the

amendments sought.

Even in cases where a ground of defence is raised in an

amendment application that appears to reflect the interest of each of

the defendants who had filed the joint written statement, the consent

of those defendants, who had not moved that amendment application,

would be required.

18

Only after the court has considered this aspect, it may proceed

to consider the amendment application as per the extant provisions of

Order VI Rule 17 CPC.

33.In the present case, since the matter has been remanded by the

revisional court to the trial court, in which order of remand I have

found no error, the trial court is required, before adjudicating as to

whether the amendment application (68क-2) ought to be allowed or

not, to first undertake the exercise of ordering service of the

amendment application 68क-2 on the defendant no.2 so that her

consent or otherwise, with regard to the amendment application, be

obtained. Once such service on the defendant no.2 is found by the

trial court to be sufficient, it would duly proceed with the matter in

accordance with law.

34.Subject to the observations made above, the impugned

judgment and order dated 26.7.2023 passed in Civil Revision No.3 of

2023 is affirmed, and the petition is dismissed.

Order Date :- 16.4.2024

SK

(Jayant Banerji, J)