REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2537 OF 2009

(Arising out of SLP (C) No.2365 of 2008)

Sumesh Singh … Appellant

Versus

Phoolan Devi & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1.Leave granted.

2.The defendant in a suit praying for a decree to set aside a deed of

sale purported to have been executed by the 8th respondent (original

defendant No.2) as a Power of Attorney holder of the original plaintiff

(her father), is before us aggrieved by and dissatisfied with a judgment

and order dated 24.10.2007 passed by the High Court of Himachal

Pradesh at Shimla dismissing a revision application filed before it from an

order dated 20.12.2005 of the learned trial judge allowing an application

for amendment of the written statement filed by the 8

th

respondent.

3.The following facts are not disputed :

The original plaintiff Sh. Babu was the owner of the suit land. He

executed a Power of Attorney on or about 13.2.1998 in favour of one

Kartari Devi – Respondent No.8 (original defendant No.2). The 8

th

respondent executed a deed of sale on 3.3.1998 in favour of the original

defendant No.1 in the aforementioned capacity. However, inter alia, on

the premise that the said Power of Attorney was illegal and the same had

been fraudulently obtained, original plaintiff filed a suit for declaration

before the Subordinate Judge, First Flass, Amb, District Una in the State

of Himachal Pradesh.

Indisputably, relying on or on the basis of the said deed of sale, the

appellant filed an application for partition before the Revenue Court of

the Tehsildar which was decided in his favour. Possession of the land in

question is said to have been handed over by the Revenue Officer.

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Appellant’s name was also entered in the Revenue Records. On or about

3.5.2000, the 8

th

respondent filed a written statement raising various pleas

that the suit of the plaintiff be dismissed.

In her written statement, the 8

th

respondent stated as under :

“6.That after plaintiff waited the summons

of partition case and enquired from the

defendant No.1 but the defendant No.1 lingered

on the matter and in the month of Jan 1999

started extended threats and proclaimed that the

suit land has been sold to him by defendant

No.2. The plaintiff was astonished and

approached the Halqua Patwari. The Patwari

Halqua who is also hand in glubs with the

defendant No.1 did not co-operated nor

provided the particulars till June 99 and after

obtaining the certified copies it has transpired

that the defendant No.1 got manufactured a

power of attorney of plaintiff alleged to be

executed on 13.02.98 Regd. No.41, Sub-

Registrar Amb in favour of defendant No.2. At

any rate even if any such power of attorney is

proved to be bearing signatures of plaintiff, the

plaintiff never give any power of attorney

consciously to sell or alienate his property to

defendant No.2 and the power to the contrary in

the alleged power of attorney was got entered as

a result of fraud, mis-representation taking

advantage of old age, sickness, illiteracy of

plaintiff and defendant No.2, physical and

mental weakness and in breach of trust and

confidence reposed in the defendants. Actually,

the intention of defendant No.1 in active

connivance with Halqa Patwari Revenues

Officer and marginal witness was to pilfer away

the property of plaintiff. The plaintiff did not

sell any property or never agreed to execute sale

deed qua the suit land to defendant No.1 nor

ever received any consideration. The allegedly

sale deed No.202 dated 03.03.1998 alleged to be

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executed by defendant No.2 is contrary as

attorney of plaintiff are and further entries got

repeated by defendant No.1 in his favour of

back of plaintiffs are bogus, fabricated

documents result of fraud, mis-representation,

undue influence without consideration without

delivery of possession, in breach of trust and

confidence reposed in defendants. Moreover,

the plaintiff had no necessity to sell the property

and was incompetent to sell being landless

person having meager holding.

XXX XXX XXX

12.It is, therefore, prayed that decree for

declaration to the effect that land measuring 0-

07-14 Hects being half share out of land

measuring 0-14-28 Hects as fully detailed in the

head note of plaintiff as owned and possessed

by the plaintiff. The defendants have no right,

title or interests in the same. The alleged power

of attorney Regd. No.41 dated 13.02.1998 is

illegal, result of misrepresentation, fraud, breach

of trust and confidence reposed on defendants,

taking advantage of old age, sickness, physical

mental weakness, illiteracy of plaintiff and does

not in any (sic) give right to defendant No.2 to

deal with andalenate the properties of plaintiff

and further alleged sale deed No.202 dated

3.3.1998 alleged to have executed by defendant

No.2 in favour of defendant No.1 in respect of

suit land and subsequent entries in favour of

defendant No.1 in the revenue record are wrong,

illegal, void, baseless, contrary to factual

position without consideration, without delivery

of possession and in breach of trust and

confidences reposed on defendants and result of

fraud, undue, influence, mis-representation

fictitious and fabricated one. The some gets

have not binding effect on the right, title or

interest of plaintiff in the suit land and for

issuance of permanent injunction as a

consequential relief restraining the defendants

from interfering in any manner whatsoever

raising any constructed, taking forcible

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possession, cutting and removing trees, taking

the suit land, in any manner may please be

passed in favour of plaintiff and against the

defendant with cost. In the alternative decree

for possession of suit land may kindly be passed

in favour of plaintiff and against defendant No.1

with cost and any other further relief to which

plaintiff is found entitled in the circumstances

of the case may also be awarded in favour of

plaintiff with cost.”

4.The original plaintiff died during the pendency of the said suit.

The respondent Nos.1 to 7, being the legal heirs of the original plaintiff,

filed an application for bringing on record the legal representatives which

was allowed. It is stated that the evidence in the suit stands also

concluded.

In 2004, an application for amendment of the plaint was filed

which was allowed. On or about 13.5.2005, the 8

th

respondent also filed

an application purported to be under Order VI Rule 17 of the Code of

Civil Procedure. The said application was allowed by the learned trial

judge by an order dated 20.12.2005, inter alia, opining :

“6.In addition to it, plaintiff has since

deceased and defendant No.2 being daughter of

plaintiff also claims herself to be Lrs. of

deceased plaintiff. She, therefore, also wants to

insert prayer to the effect that suit be decreed in

favour of deceased plaintiff through Lrs. and

defendant No.2. The aforesaid amendment even

if allowed would not change the position since

there is specific issue which was framed as issue

No.1 i.e. if power of attorney dated 23.2.1998

allegedly executed by plaintiff in favour of

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defendant No.2 is result of misrepresentation

and fraud. The plaintiff has to affirmatively

prove the allegations of fraud and

misrepresentation. However, at the same time if

stand being taken by defendant No.2 is allowed

to be incorporated in the pleadings, it will also

give a fair chance even to defendant No.1 to

justify his position and effectively defend the

case coming against him. Hence, narration of

facts disclosed in application as a whole are

such where rejection of application is unjust and

unreasonable whereas if pleadings sought to be

incorporated by defendant No.2 are allowed to

be introduced in the pleadings that it will also

give fair chance to defendant No.1 to defend the

case. Hence, this application of defendant No.2

is allowed. Amended written statement is

already on record. It be tagged with case filed.”

5.Appellant filed a revision petition thereagainst before the High

Court which by reason of the impugned order has been dismissed opining

that as the application for amendment filed by the plaintiff was allowed

by an order dated 20.12.2005 which having not been challenged; the

defendants had a right to file an amended written statement to the

amended plaint. It was observed that the said right to file amended

written statement to the amended plaint is independent of any right which

might accrue to the respondent to file an amended statement pursuant to

the permission granted to do so in an application seeking amendment of

the written statement.

6.Mr. P.S. Rana, learned counsel appearing on behalf of the

appellant, would submit that keeping in view the stand taken by the 8

th

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respondent in her original written statement in terms whereof she prayed

for dismissal of the suit, again at a later stage, should not have been

permitted to turn round and take a plea that the suit filed by her father

should be decreed. It is not in dispute that the 8

th

respondent is one of the

heirs and legal representatives of the original plaintiff. On the death of

the original plaintiff, his legal representatives were brought on record.

Certain subsequent events occurred. Amendment of the plaint was

carried out by an order dated 20.12.2005. The correctness of the said

order was not in question.

7.The 8

th

respondent along with the other heirs and legal

representatives of the original plaintiff claimed to be in possession of the

property.

8.It is pursuant to the liberty granted that application for amendment

in the written statement was allowed. The learned Trial Judge while

passing its order dated 20.12.2005 opined that the 8

th

respondent never

admitted that she had sold the suit land on the basis of the purported

Power of Attorney of plaintiff. It was held :

“During the pendency of suit, application has

been filed by defendant No.2 alleging that the

she never sold suit land nor even received any

consideration. According to her, plaintiff never

gave or executed any power of attorney dated

13.2.1998 in her favour. She further alleges that

she never went to sub-Registrar in connection

with power of attorney dated 13.2.1998 or sale

deed dated 3.3.1998. She claims to be an

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illiterate lady. These facts are, therefore, sought

to be incorporated in written statement.”

9.It is true that ordinarily, an amendment of pleadings should not be

allowed by reason whereof a party to the suit would resile from the

admission made by him in the same proceedings at an earlier stage. This

aspect of the matter has been considered in Gautam Sarup v. Leela Jetly

& Ors. [(2008) 7 SCC 85] wherein it was held :

“28. What, therefore, emerges from the

discussions made hereinbefore is that a

categorical admission cannot be resiled from

but, in a given case, it may be explained or

clarified. Offering explanation in regard to an

admission or explaining away the same,

however, would depend upon the nature and

character thereof. It may be that a defendant is

entitled to take an alternative plea. Such

alternative pleas, however, cannot be mutually

destructive of each other.”

10.In this case, however, the averments made in the plaint have merely

been denied. There is no categorical or unequivocal admission as such.

It is, thus, not a case where a party to the suit is resiling from his

statement made in the earlier part of the proceedings. The learned trial

Judge, in a case of this nature, had not or could not have taken recourse to

the provisions of Order VIII Rule 3 and Order VIII Rule 5 of the Code of

Civil Procedure. An issue has been framed by and between the plaintiff

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and the contesting defendant. The said issue is required to be determined.

Parties are required to adduce evidence thereupon.

11.Mr. Rana would submit that having regard to the proviso appended

to Order VI, Rule 17 of the Code of Civil Procedure, the amendment

could not have been allowed. The said proviso has been added by Act 22

of 2002 w.e.f 1.7.2002.

12.By reason of Section 16(2)(b) of the Code of Civil Procedure

(Amendment) Act, 2002, the amendments carried out therein shall only

apply to in respect of the suits which were filed thereafter. {See State

Bank of Hyderabad v. Town Municipal Council [(2007) 1 SCC 765]}.

As the suit had been filed in the year 1999, the proviso appended to Order

VI, Rule 17 shall not apply.

13.In the peculiar facts and circumstances of this case, we do not think

that any useful purpose would be served in interfering with the impugned

judgment at this stage particularly having regard to the observations made

by the High Court. The appeal, therefore, is dismissed without any order

as to costs.

..……………………

……..…J.

[S.B. Sinha]

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..…………………………..

…J.

[P. Sathasivam]

New Delhi;

April 15, 2009

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