Decided on July 31,1973



- (1.) PLAINTIFF's (Opp. Party No. 1's) suit is for redemption. It was filed on 31st of august, 1970. Plaintiff's case is that defendant No. 2 (Opp. Party No. 2) executed a registered possessory mortgage bond in favour of defendant No. 1 (Petitioner) in respect of the disputed property for a consideration of Rs. 280/- on 13-5-1965 and handed over possession of the same to defendant No. 1. The first defendant filed a written statement alleging in paragraph 4 that the disputed property was never delivered by defendant No. 2 to defendant No. 1 on the date of the mortgage and that defendant No. 2 is in possession even till now. His further case was that defendant No. 2 entered into an agreement for sale with him and took advance of Rs. 780/- in two instalments. On 12-10-1972 two petitions were filed by the first defendant for amendment of the written statement. He alleged that there was an agreement for sale executed by defendant No. 2 in favour of defendant No. 1 on 20th of May, 1966. No possession was given to the first defendant by the second defendant under the mortgage deed though It was a possessory mortgage. Possession was given by defendant No. 2 to defendant No. 1 in part performance of the agreement dated 20-5-1966 and by oversight it was mentioned that the first defendant was not in possession and defendant No. 2 was continuing in possession even till now. In the amendment it was also stated that rs. 300/- was paid on 20-5-1966 by receipt and a further sum of Rs. 450/- on 154-1967 On the basis of this averment in the amendment petitions, the first defendant made a prayer that the last line of para" graph 4 of the written statement may be deleted and the following line may be substituted in its place:-"as a matter of fact the defendant No. 2 was in possession of the mortgaged property till he contracted to sell the same to this defendant no. 1 i. e. till 20-5-66. " after Paragraph 7 of the written statement the following new paragraph 8 was praved to be added: "8. That this defendant in pursuance of the contract made by defendant no. 2 on 20-5-1966 for sale of the suit land for RS. 1. 680/- having paid rs. 780/- and having come into possession of the suit land from that date to the knowledge of the plaintiff and this defendant No. 1 being always willing to perform his part of the contract, the plaintiff is bound by the same and he cannot evict this defendant on the strength of his subsequent alleged purchase of the suit land from the defendant No. 2 as the plaintiff is aware of the aforesaid previous contract with this defendant. from the very beginning. " the learned Munsif rejected this amendment saving that it will change the nature of the suit. He perhaps meant that the amendment will change the nature of the defence.
(2.) HAVING heard the learned advocates carefully. I am of opinion that this amendment should be allowed. Doubtless if the amendment is allowed the effect of the admission of the first defendant in paragraph 4 of the written statement that he did not get possession of the disputed property and the second defendant was still in possession will be whittled down. One of the paramount considerations in allowing or rejecting an amendment is whether the opposite party would suffer on account of an admission being amended. In many cases such amendments are not allowed. But no general principle can be laid down that every admission already made cannot be permitted to be amended. Such a wide proposition will lead to clear injustice. Much will depend on the facts and circumstances of each case.
(3.) IN this case the admission appears to be a misconception of the lawyer in drafting the written statement. The first defendant can resist the suit of the plaintiff based on sale by the doctrine of part performance under Section 53-A of the Transfer of Property Act. On the original written statement as drafted, the first defendant's case is bound to fail even if the entire case in the written statement is proved during trial as it is not based on the doctrine of part Performance. The real controversy between the parties is whether the sale by defendant No. 2 in favour of the plaintiff would prevail or despite the sale the first defendant can resist possession on the strength of an earlier agreement for sale in part performance of which Possession had been delivered. The Advocate for defendant No. 1 did not appreciate the real issue while drafting the written statement. The amendment is permissible to allow the real controversy to be settled. The principle to be followed in such cases has been laid down in AIR 1966 Orissa 6 (Parbati Dei v. Alupati dukhishvam Patra ).;

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