RAM NIRANJAN KAJARIA Vs. SHEO PRAKASH KAJARIA & ORS.

Tags Civil Procedure

Supreme Court of India (Full Bench (FB)- Three Judge)

Appeal (Civil), 31423-31424 of 2015, Judgment Date: Sep 18, 2015

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2015
(Arising from S.L.P. (C) Nos. 31423-31424 /2010)

Ram Niranjan Kajaria … Appellant (s)

Versus

Sheo Prakash Kajaria and others … Respondent (s)

WITH

CIVIL APPEAL NO. OF 2015
(Arising from S.L.P. (C) Nos. 33891/2010)

Jugal Kishore Kajaria … Appellant (s)

Versus

Sheo Prakash Kajaria and others … Respondent (s)

J U D G M E N T

KURIAN, J.:

Leave granted.

Whether a defendant in a suit for partition can be permitted to withdraw an
admission made in the written statement after a pretty long period, is the
issue arising for consideration in these cases.

Partition Suit No. 696 of 1978, filed in the High Court of Calcutta on
Original Side, pertains to the partition of premises No.6, Russel Street,
Calcutta, originally belonging to one Motilal Kajaria. Defendant Nos. 5 and
12 are the son and widow, respectively, of the predeceased son, viz.,
Mahabir Prasad of Motilal Kajaria. In the Partition Suit, Defendant Nos. 5
and 12 filed a joint written statement on 16.08.1979, inter alia, stating
as under:

“1. These defendants state that there is no cause of action against these
defendants and these defendants are unnecessary parties and as such the
suit against these defendants should be dismissed with costs,…

“a) xxx xxx xxx

b) In the year 1942, the said Mahabir Prasad Kajaria, since deceased
separated from his father Motilal Kajaria since deceased and his brothers,
namely the defendants No. 1 to 4 in food, estate and business. Since his
separation from his father and brothers the said Mahabir Prasad Kajaria was
carrying on his independent business and holding his own separate property.
The said “Mahabir Prasad Kajaria” also renounced all his interests in all
the properties and assets of his father the said Motilal Kajaria since
deceased.

c) These defendants state that neither of them is a co-sharer for the
Premises No. 6, Russel Street, Calcutta and nor they have any right title
or interest whatsoever in the said premises. These defendants further state
that after the death of Motilal Kajaria neither of these defendants had
inherited his property nor business as the said Mahabir Prasad separated
from his father and brothers in 1942 and renounced all his rights, title
and interest in the properties of the said Motilal Kajaria.”

Prior to the filing of the written statement, they had also filed an
affidavit dated 29.11.1978 while opposing an application for appointment of
receiver in respect of the suit property stating that:

“I state that my late father Mahabir Prasad Kajaria was separated from my
grand father late Motilal Kajaria in the year 1942 and severed all his
connections with his father and brothers and since then my father was
carrying independent business and holding separate property.

I further state neither I nor my mother is co – sharer of the Premises No.
6, Russel Street, Calcutta and we have no right, title and interest
whatsoever in the said Premises No. 6, Russel Street, Calcutta nor we have
inherited the shares of my grand father Late Motilal Kajaria and as such I
state that we have been unnecessarily joined as defendants.”

In the Order dated 02.05.1979, while appointing a Court Receiver in respect
of the suit property, the court recorded the following findings:

“… Mahabir Prasad Kajaria had no interest in the property as such
respondent No. 5 (Sheo Prakash Kajaria) also can have no interest in the
said property. The allegation that the co-owners have not received any
money towards their shares is incorrect…”

After Defendant Nos. 5 and 12 filed written statement on 14.09.1979, Smt.
Bhagwani Devi Kajaria-Defendant No.16, who is the mother of late Mahabir
Prasad Kajaria (Grand mother of Defendant No.5 and mother-in-law of
Defendant No.12), filed a written statement clearly stating that late
Mahabir Prasad had separated from his father and other brothers as early as
in 1942 and had also renounced all his rights in the movable and immovable
properties of his father Motilal Kajaria. The relevant portion of the
written statement of the grand mother of Defendant No.5 reads as follows:

“b) The defendant Nos. 1, 2, 3 and 4 are the sons of this defendant and
defendant No. 5 is the grandson of this defendant. This defendant’s second
son Mahabir Prasad Kajaria father of the defendant No. 5 Sheo Prakash
Kajaria and husband of the defendant No. 12 Sm. Ginia Devi Kajaria was
separated from his father and brothers in food, estate and business in
1942. He renounced all his right, title and interests in the moveable and
immoveable properties of his father the said Motilal Kajaria. The said
Mahabir Prasad died in 1949. Since Mahabir Prasad Kajaria separated from
his father he was carrying on his independent business and also acquired
properties.”

On 13.12.1979, the petitioner herein, who is Defendant No.4, had also filed
his written statement on the same lines indicated above.

On 02.07.1980, the learned Single Judge, on an application for perjury, had
recorded the following findings:

“Pannalal Kajaria had three sons Matilal, Jaharmal and Onkarmal Kajaria.
Before the death of Motilal Kajaria on 5th June, 1952 his second son,
Mahabir Prasad Kajaria was separated from him in 1942 in food and in estate
and renounced all his claim over the properties of Motilal Kajaria.

… There was a declaration given by Smt. Ginia Devi Kajaria, widow of
Mahabir Prasad Kajaria on 25th February, 1956 before the Joint Arbitrators
stating that her husband Mahabir Kajaria separated himself from his father
Matilal Kajaria and his brothers in food, estate and business renounced his
right title and interest in the said joint immovable properties in favour
of his brothers and father.”

On 09.01.1989, Plaintiff No. 6, viz. Sulochna
Devi had filed an application seeking leave for withdrawal of the suit
wherein also there was a statement regarding relinquishment of the claims
of Defendant Nos. 5 and 12.

It is to be noted that Defendant No. 5 is a businessman, and going by his
date of birth, he was 37 in 1978 when he filed the affidavit, 38 when he
filed the written statement on behalf of his mother and in 1989, he was
aged 49 years.

After about 15 years of the written statement, on 17.01.2004, Defendant
Nos. 5 and 12 filed an application for amendment of the written statement
mainly seeking to resile from the admissions regarding relinquishment of
their right in the suit property.

After one year of the said application for amendment of the written
statement, they also filed a civil suit (Civil Suit No.9 of 2005) on
19.01.2005, seeking a declaration attacking the arbitration award dated
13.09.1956 regarding the partition of the property and claiming right in
the suit property.

On 13.09.2008, the learned Single Judge dismissed the application. However,
the intra-court appeal filed by Defendant Nos. 5 and 12 was allowed by the
Division Bench of the High Court and hence these appeals.

The Division Bench in the impugned judgment has taken the view that the
rejection of the application for amendment would result in failure of
justice and would cause irreparable injury to Defendant Nos. 5 and 12.
According to the Division Bench, in the impugned Judgment:

“In our view, there was no justification of denying such an opportunity to
the appellants to prove the amended version on the ground of mere delay,
the effect of which will be, to unjustly permit the opposing defendants to
reap the benefit of an apparent admission, which is not conclusive proof of
the fact contained in the pleading in accordance with the law of the land,
and which may not be true. Moreover, for considering the question whether
the amendment is a malafide one, we cannot lose sight of the fact it is not
even the case of the opposing defendants that by way of relinquishing his
interest, Mahabir got any property of the Coparcenary in lieu of
relinquishment. Thus, malafide on the part of the appellants cannot be
inferred from the apparent facts of the present case.

We, thus, find that the learned Single Judge, while rejecting the
application for amendment of the written statement filed by the appellants,
did not follow the well-accepted principles, which are required to be
followed, while deciding this type of an application for amendment of the
written statement. Thus, it was a case of improper exercise of discretion
by the learned Trial Judge by not following the binding precedents, which
justified interference by the appellate Court.”

We are afraid the view taken in the impugned judgment is not true to
facts. Even according to Defendant Nos. 5 and 12, they had their separate
property and they were doing independent business. In the affidavit filed
on 29.11.1978 before the High Court (Annexure-P5), it is stated as follows:

“1. I am a respondent No. 5 herein and Smt. Giniya Devi Kajaria,
respondent No. 12 is my mother and I am acquainted with the facts and
circumstances of this case and as such I am competent to affirm this
affidavit on behalf and on behalf of my mother Smt. Giniya Devi Kajaria the
respondent No. 12. I have read a copy of the Notice of Motion taken out by
the Advocate of the petitioner on 19th September, 1978 and a petition
affirmed by Shreelall Kajaria on 19th September, 1978 to be intended to be
used as grounds in support of the said Notice of Motion and I state that I
have understood the meaning, intents and purposes thereof.

2. I state that my late father Mahabir Prasad Kajaria was separated from
my grand father Late Motilal Kajaria in the year 1942 and severed all his
connections with his father and brothers and since then my father was
carrying on independent business and holding separate property.

3. I further state neither I nor my mother is a co-sharer of the
Premises No. 6, Russel Street, Calcutta and we have no right, title and
interest whatsoever in the said Premises No. 6, Russel Street, Calcutta nor
we have inherited the shares of my grand father Late Motilal Kajaria and as
such I state that we have been unnecessarily joined as defendants.

4. I state that my grand father Late Motilal Kajaria died on 5th June,
1952 and disputes and differences arose between the heirs and legal
representatives of Late Motilal Kajaria in respect of immovable properties
left by my said grand father which disputes were referred to an arbitration
of Dulichand Kheria, Sheo Prasad Patodia and Ramnath Kanoria and in the
said Arbitration Proceedings my mother Smt. Giniya Devi Kajaria defendant
No. 12 herein made a declaration in writing on 25th February, 1956 before
the Arbitrators stating that my Late father Mahabir Prasad Kajaria
separated himself from father and his brothers in food, estate and business
and renounced the right, title and interest in the joint immovable property
in favour of his brothers and father. A copy of the said declaration dated
25th February, 1956 of my mother Smt. Giniya Devi Kajaria defendant No. 12
herein addressed to the Arbitrators is enclosed herewith and marked with
letter “A”.

5. I state and submit that the petition is not maintainable and should
be dismissed with cost.

6. With reference to paragraph 20 of the said petition I deny that I
have got 2.78% in the said premises No.6, Russel Street, Calcutta as
alleged or at all which will also appear from the Registered Award dated
13th September, 1956 of the said Arbitrators. Save and except I have no
knowledge in the allegations made in different paragraphs of the said
petition and I do not admit the same.

7. I state that the petition No.1 Shreelall Kajaria after he was
released from imprisonment he was serving as my employee in my firm M/s.
Evergreen Industries at Sonepat Haryana at a monthly salary of Rs.400/- per
month upto the year 1972 and was staying at Sonepat Haryana till he was
under my service.”

The clear stand taken by Defendant No. 5 when he was aged 37 and when he
was in active business is that his father had separated from the
grandfather in the year 1942 and since then, he was carrying on independent
business and holding separate property. It is crucially relevant to note
that the declaration of Defendant No. 12 before the Arbitrators regarding
the relinquishment was produced by them only.

Learned Counsel for Defendant Nos. 5 and 12, in the impugned order has
placed heavy relevance on Panchdeo Narain Srivastava v. Km. Jyoti Sahay and
Another[1]. It was a case where the plaintiff moved an application for
amendment of the plaint regarding the relationship of the second defendant.
It was stated in the plaint that he was the uterine brother of one R.
Later, an application for amendment was moved for deletion of the word
“uterine” from the plaint. The Trial Court allowed the application but in
Revision, the High Court set aside the order. While restoring the order
passed by the Trial Court, this Court held at Paragraph-3 of the Judgment
as follows:
“3. Even if the High Court was justified in holding that the deletion of
the word ‘Uterine’ has some significance and may work in favour of either
side to a very great extent yet that itself would not provide any
justification for rejecting the amendment in exercise of its revisional
jurisdiction. We may, in this connection, refer to Ganesh Trading Co. v.
Moji Ram wherein this Court after a review of number of decisions speaking
through Beg, C.J. observed that procedural law is intended to facilitate
and not to obstruct the course of substantive justice. But the learned
counsel for the respondents contended that by the device of amendment a
very important admission is being withdrawn. An admission made by a party
may be withdrawn or may be explained away. Therefore, it cannot be said
that by amendment an admission of fact cannot be withdrawn. The learned
Trial Judge, granting the application for amendment was satisfied that in
order to effectively adjudicate upon the dispute between the parties,
amendment of the pleading was necessary. The High Court in its revisional
jurisdiction for a reason which is untenable ought not to have interfered
with the order made by the trial court. The learned counsel for the
respondents in this connection read one unreported decision of this Court
in which this Court upheld the decision of the High Court setting aside the
order granting amendment in exercise of its revisional jurisdiction. We
have gone through the judgment. The decision does not lay down any
particular principle of law and appears to be a decision on its own facts.
And ordinarily, it is well settled that unless there is an error in
exercise of jurisdiction by the trial court, the High Court would not
interfere with the order in exercise of its revisional jurisdiction.”

The above decision was followed in Sushil Kumar Jain v. Manoj Kumar and
another[2]. The case pertained to eviction proceedings. The original stand
taken by the tenant was that there were different tenancies. However, an
application for amendment was moved stating that there are three different
portions under one tenancy and not different portions under different
tenancies. The Court, at Paragraph-12, held as follows:

“12. In our view, having considered the averments made in the application
for amendment of the written statement, it cannot be said that in fact
neither any admission was made by the appellant in his original written
statement nor had the appellant sought to withdraw such admission made by
him in his written statement. That apart, after a careful reading of the
application for amendment of the written statement, we are of the view that
the appellant seeks to only elaborate and clarify the earlier inadvertence
and confusion made in his written statement. Even assuming that there was
admission made by the appellant in his original written statement, then
also, such admission can be explained by amendment of his written statement
even by taking inconsistent pleas or substituting or altering his defence.”

The learned Counsel appearing for the appellant mainly referred to three
Judgments of this Court. In Modi Spinning and Weaving Mills Co. Ltd. v.
Ladha Ram & Co.[3], it was held as follows at Paragraph-10:
“10. It is true that inconsistent pleas can be made in pleadings but the
effect of substitution of paras 25 and 26 is not making inconsistent 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.”

In Gautam Sarup v. Leela Jetly and others[4], after considering Panchdeo
Narain Srivastava (supra) and Modi Spinning and Weaving Mills Co. Ltd. v.
Ladha Ram & Co. (supra) and several other decisions dealing with the
amendment on withdrawal of admissions in the pleadings, it was held at
Paragraph-28 as follows:

“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.”

On amendments generally, in the decision reported in Revajeetu Builders and
Developers v. Narayanaswamy and Sons and others[5], after referring to
Gautam Sarup (supra), the principles on amendment have been summarized at
Paragraph-63. It has been held as follows:

“63. On critically analyzing both the English and Indian cases, some basic
principles emerge which ought to be taken into consideration while allowing
or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective
adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which
cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple
litigation;
(5) whether the proposed amendment constitutionally or fundamentally
changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit
on the amended claims would be barred by limitation on the date of
application.
These are some of the important factors which may be kept in mind while
dealing with application filed under Order 6 Rule 17. These are only
illustrative and not exhaustive.”

In the case before us, we are afraid, many of the factors referred to
above, have not been satisfied. It is significant to note that Defendant
Nos. 5 and 12, after moving an application for amendment withdrawing the
admissions made in the written statement, have filed a substantive suit
attacking the alleged relinquishment of their claim in the family property
and we are informed that the trial is in progress. In that view of the
matter, we do not propose to deal with the matter any further lest it
should affect the outcome of the suit filed by Defendant Nos. 5 and 12
since the declaration sought in the suit filed in 2005 is to take away the
basis of the said relinquishment of the claim in the suit property.
However, as far as amendment is concerned, the attempt to wholly resile
from the admission made after twenty five years, we are afraid, cannot be
permitted.

Delay in itself may not be crucial on an application for amendment in a
written statement, be it for introduction of a new fact or for explanation
or clarification of an admission or for taking an alternate position. It is
seen that the issues have been framed in the case before us, only in 2009.
The nature and character of the amendment and the other circumstances as in
the instant case which we have referred to above, are relevant while
considering the delay and its consequence on the application for amendment.
But a party cannot be permitted to wholly withdraw the admission in the
pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam
alias Brijram and others[6]. To quote Paragraph-27:

“27. From a conspectus of the cases cited at the bar, the principle that
emerges is, that if at the time of the passing of the decree, there was
some material before the Court, on the basis of which, the Court could be
prima facie satisfied, about the existence of a statutory ground for
eviction, it will be presumed that the Court was so satisfied and the
decree for eviction though apparently passed on the basis of a compromise,
would be valid. Such material may take the shape either of evidence
recorded or produced in the case, or, it may partly or wholly be in the
shape of an express or implied admission made in the compromise agreement,
itself. Admissions, if true and clear, are by far the best proof of the
facts admitted. Admissions in pleadings or judicial admissions, admissible
under Section 58 of the Evidence Act, made by the parties or their agents
at or before the hearing of the case, stand on a higher footing than
evidentiary admissions. The former class of admissions are fully binding on
the party that makes them and constitute a waiver of proof. They by
themselves can be made the foundation of the rights of the parties. On the
other hand, evidentiary admissions which are receivable at the trial as
evidence, are by themselves, not conclusive. They can be shown to be
wrong.”
(Emphasis supplied)

We agree with the position in Nagindas Ramdas (supra) and as endorsed in
Gautam Sarup (supra) that a categorical admission made in the pleadings
cannot be permitted to be withdrawn by way of an amendment. To that extent,
the proposition of law that even an admission can be withdrawn, as held in
Panchdeo Narain Srivastava (supra), does not reflect the correct legal
position and it is overruled.

However, the admission can be clarified or explained by way of amendment
and the basis of admission can be attacked in a substantive proceedings. In
this context, we are also mindful of the averment in the application for
amendment that:

“11. …. Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949
when the defendant No. 5 was only 2 years and the defendant No. 12 was only
21 years. Till the death of Mahabir and even thereafter, the petitioners
had been getting benefits from income of the joint properties. The
defendant No.5 and his two sisters, namely, Kusum and Bina were brought up
and were maintained from the income of the joint family properties. The
petitioners after the death of Mahabir, they continued to live in the joint
family as members and till now members of the joint family. In the marriage
of the two sisters of the defendant no.5 Kusum and Bina (now after marriage
Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne
out from the incomes of the joint family properties. The said facts are
well known to all the family members and their relations.”

In the counter affidavit filed before this Court, Defendant Nos. 5 and 12
have stated as follows:

“The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad
used in the arbitration proceedings where she was not a party admitting
relinquishment of the share of her husband and thereafter admitting such
letter in the original pleading is not what the answering respondents want
to resile and/or withdraw from but by the present amendment had only ought
to explain the circumstances in which such letter has been written.”

In the above circumstances, we do not intend to make the suit filed in the
year 2005 otherwise infructuous. The application for amendment withdrawing
the admissions made in the written statement on relinquishment of the claim
to the suit property by Defendant Nos. 5 and 12 is rejected. However, we,
in the facts and circumstances of the case, are of the view that Defendant
Nos. 5 and 12 should be given an opportunity to explain/clarify the
admissions made in the written statement. Accordingly, Defendant Nos. 5
and 12 are permitted to file an application within one month from today
limiting their prayer only to the extent of explaining/clarifying the
disputed admissions in the written statement which will be considered on
its merits and in the light of the observations made herein above.

Though the learned Counsel for the appellant vehemently pressed for costs,
we reluctantly refrain from passing any order in that regard. After all, it
is a suit for partition of the family property. At any stage, the parties
can have a change of heart and ignore the law or facts or other
technicalities and reach an amicable settlement.

The appeals are partly allowed as above. The impugned Judgment will stand
modified to the extent indicated herein above.

There shall be no order as to costs.

..…….…..…………J.
(ANIL R. DAVE)

..……………………J.
(KURIAN JOSEPH)

..…….…..…………J.
(AMITAVA ROY)
New Delhi;
September 18, 2015.
-----------------------
[1] (1984) Supp. SCC594
[2] (2009) 14 SCC 38
[3] (1976) 4 SCC 320
[4] (2008) 7 SCC 85
[5] (2009) 10 SCC 84
[6] (1974) 1 SCC 242

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2015
(Arising from S.L.P. (C) Nos. 31423-31424 /2010)

Ram Niranjan Kajaria … Appellant (s)

Versus

Sheo Prakash Kajaria and others … Respondent (s)

WITH

CIVIL APPEAL NO. OF 2015
(Arising from S.L.P. (C) Nos. 33891/2010)

Jugal Kishore Kajaria … Appellant (s)

Versus

Sheo Prakash Kajaria and others … Respondent (s)

J U D G M E N T

KURIAN, J.:

Leave granted.

Whether a defendant in a suit for partition can be permitted to withdraw an
admission made in the written statement after a pretty long period, is the
issue arising for consideration in these cases.

“a) xxx xxx xxx

Prior to the filing of the written statement, they had also filed an
affidavit dated 29.11.1978 while opposing an application for appointment of
receiver in respect of the suit property stating that:

In the Order dated 02.05.1979, while appointing a Court Receiver in respect
of the suit property, the court recorded the following findings:

On 13.12.1979, the petitioner herein, who is Defendant No.4, had also filed
his written statement on the same lines indicated above.

On 02.07.1980, the learned Single Judge, on an application for perjury, had
recorded the following findings:

5. I state and submit that the petition is not maintainable and should
be dismissed with cost.

In the counter affidavit filed before this Court, Defendant Nos. 5 and 12
have stated as follows:

The appeals are partly allowed as above. The impugned Judgment will stand
modified to the extent indicated herein above.

There shall be no order as to costs.

..…….…..…………J.
(ANIL R. DAVE)

..……………………J.
(KURIAN JOSEPH)

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REPORTABLE

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