- (1.) SHISHIR Kumar, J. This writ petition has been filed for quashing the order dated 16-1-1999 passed by 1st Additional District Judge, Sonebhadra, Annexure-5 to the writ petition by which the amendment application fifed on behalf of plaintiff- respondents No. 3 to 5 has been allowed.
(2.) THE facts arising out of the present writ petition is that respondent No. 2 filed a suit for permanent injunction impleading therein the petitioner-respondent No. 3 Jawahar Singh husband of Smt. Gulab Patti Devi, respondent No. 4 and respondent No. 5 alleging therein that the petitioner is residing in the house shown by letters Ka, Kha, Ga, Gha in the sketch map attached to the plaint. It has been stated that towards the south of the letters Kha, Ga, a Gali exists which has been shown by letters A, B. THE plaintiff wants to raise some construction in the aforesaid portion but the defendants are causing obstructions, hence the suit. THE written statement was filed on behalf of the defendants alleging therein that the plaintiff is intending to get staircase constructed in the Gali shown in the letters, which is a land of public utility. It is a public path and Nali containing dirty water flowing from there. THE aforesaid public land along with Nali exists for the last 32-35 years. It is the only way by which the dirty water of the locality flows. In case any construction is permitted, it will cause nuisance. Various issues were framed and the parties led their evidence and the trial Court after considering the evidence on record, was pleased to dismiss the suit vide its judgment and decree dated 19-8-1996. Respondent No. 2 aggrieved by the aforesaid judgment and decree filed an appeal. Before the appellate Court an application for amendment for changing the total nature and relief of the plaint claimed before the trial Court was filed. In spite of the objection by the petitioner to this effect that the present application for amendment is not maintainable as the plaintiff-respondent has already admitted and claimed the easementary right upon the lane in dispute and now by way of amendment he wants to withdraw his admission, therefore, this will amount to total changing the nature of the suit but the appellate authority without considering the aforesaid fact has allowed the revision vide its judgment and order dated 16-8-1999. Aggrieved by the aforesaid order the petitioner has filed the present writ petition. It has been submitted on behalf of the petitioner that it is not in dispute that the amendment can be allowed at any stage but a person cannot resile from the admission, which has already been made. The Counsel for the petitioner has brought it to the notice of the Court regarding the plaint which was filed before the trial Court and has submitted that the relief sought in the plaint was for easementary right only to the effect that the defendant-respondents may be restrained from interfering in the peaceful use of the said Gali. It was never pleaded in the plaint that he is the owner of the said land in dispute. By the amendment, which he wants to bring before the appellate Court, he is claiming that he is the owner in possession of the land, which has been shown as A, B. The said amendment changes the total nature of the suit and the same is not permissible and the appellate authority has clearly erred in law in allowing the said amendment application vide its order dated 16-8-1999. It has further been submitted on behalf of the petitioner that the amendment is an afterthought as the trial Court has already non-suited the plaintiff-respondent and when the plaintiff came to know that on the basis of the pleadings submitted in the plaint, he will not be able to succeed as such he has totally changed the nature of the suit by way of the present application for amendment. Reliance has been placed on the case reported in AIR 1978 SC 798, Haji Mohammed Ishaq Wd. S. K. Mohammed and Ors. v. Mohamed Iqbal and Mohamed Ali and Co. , and paragraph 6 of the said judgment has been referred which is quoted below: " (6) Rahim was examined as a witness on behalf, of the defendants in the trial Court as D. W. 1 on the 12th of October, 1955 and after examining a few more witnesses the evidence of the parties was closed on that very date. Rahim made some strange and peculiar statements in his deposition in support of the defendants and introduced some entirely new facts which were never disclosed to be plaintiff in any of the letters written during the course of the business or in reply to the lawyer's notice or in their written statement. He introduced a story of some kind of partnership between him and one of the partners of the plaintiff and Manavi. Even then no prayer was made by the appellants in the trial Court for amending their written statement or for permission to adduce any further evidence. About three years later, as stated above, they filed their applications in the High Court for the purposes aforesaid. In our judgment the High Court has rightly refused the prayers of the appellants. The amendment of the written statement sought was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken up either at the time of the dealings between the parties or in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The High Court rightly rejected all those petitions and we need not mention in any detail the reasons thereof. " Reliance has also been placed on the case reported in AIR 1977 SC Page 680, M/s. Modi Spinning and Weaving Mills v. Ladha Ram and Co. , and paragraphs 8, 9 and 10 of the said judgment have been referred which are reproduce below: " (8) The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side. (9) The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case. (10) It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making in consistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court. " Further reliance has been placed on the case reported in 1998 (1) JCLR 153 (SC) : 1998 R. D. (SC) Page 140, Heeralal v. Kalyan Mal and Ors. , and following observations of the Apex Court has been referred: ". . . . . . . . This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned Judges that decided the case in Akshaya restaurant (supra ). In the latter case it was observed by the Bench of two learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant (supra) proceed on an assumption that it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However, the aforesaid decision of the three member Bench of this Court in Modi Spinning (supra) is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff's case and cause him irretrievable prejudice. Consequently, it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff's case it could not be allowed as ruled by a three member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incurium being rendered without being given an opportunity to consider the binding decision of a three member Bench of this Court taking a diametrically opposite view. "
(3.) ON the other hand the Counsel for the respondents submit that the present case is prior to the amendment of 2002 of Order VI Rule 17 by which proviso has been added. Prior to that an amendment can be allowed at any stage. The plaintiff respondent submits that the amendment sought will not change the nature of the suit, therefore, the Court below has rightly allowed the amendment and now the matter will be decided after hearing both the parties and the defendant-petitioner will also be afforded opportunity to lead the evidence and if ultimately it is found that in spite of the amendment allowed, the plaintiff-respondent is not able to prove his case, the appeal filed by the respondent will be dismissed. I have heard the learned Counsel for the parties and have perused the record. Admittedly originally the suit, which was filed that was simplicitor for injunction and right of easement. In paras 5 and 8 of the plaint the plaintiff-respondent has clearly stated that he has been using the said lane for a long period and the defendants may be restrained from interfering and to raise any construction. The trial Court after affording an opportunity to the petitioner has come to the conclusion that it is a public lane and is being used by the residents of the locality and the plaintiff has failed to prove that the defendants are in any way interfering in use of the said Rasta and for the purpose of dirty water the Nali is there and the dirty water is being flowed through that Gali which has been shown in the map. I have perused the amendment, which is being sought by the plaintiff-respondent. By the said amendment now the plaintiff has come out with a case that when the plaintiff was constructing the house, due to the request of the defendants and other persons who were living in the locality in the west, some land was left which belonged to the plaintiff-respondent. He has also prayed in the amendment application that he is owner in possession of the said land, in my view, the appellate authority ought to have considered the fact that the plaintiff-respondent has already admitted and claimed easementary right and he was not suited and now he is claiming the right over the property which has been shown in the map. In my opinion this is not permissible as it clearly changes the nature of the suit. Order VI Rule 17 provides amendment of the pleadings. It is provided that generally amendment be allowed at any stage but the Court must be satisfied as to why the pleading could not be brought in, unless it was based on subsequent developments.;