USHA BALASAHEB SWAMI AND ORS. versus KIRAN APPASO SWAMI AND ORS.

Citation: [2007] 5 S.C.R. 306 · Decided: 18-04-2007 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
USHA BALASAHEB SW AMI AND ORS. 
v. 
KIRAN APPASOSWAMIANDORS. 
APRIL 18, 2007 
B 
[TARUN CHATTERJEE AND R. V. RA VEENDRAN, JJ.] 
Code of Civil Procedure, 1908: Order 6 Rule 17. 
Amendment of pleadings-Written statement-Principles to be borne in 
C mind-Amendment of written statement and amendment of plaint-Factors 
governing grant of permission-The suit properties originally belonged to 
one 'V' and on his death 'A ' and 'B' came to inherit the suit properties-
The plaintiffi and he defendants were the legal representatives of 'A ' and 'B' 
respectively-The plaintiffi inherited one-half share of the suit properties 
D jointly with defendants-Since the defendants had refused to partition the 
suit properties and deliver separate possession, the plaintiffi filed the suit for 
partition and possession-The defendants filed their written statement in 
which they admitted that the plaintiffi were entitled their written statement 
in which they admitted that the plaintiffs were entitled to one-half share in 
the suit properties-Subsequently, the defendants filed an application for 
E amendment of the written statement under Order 6 Rule 17 in which they 
sought to add that the plaintiffi could not acquire right, title and interest 
in the joint family properties as they were the illegitimate children of the 
deceased 'A '-The trial court allowed the application for amendment-But 
the High Court held that it was not permissible for the defendants to withdraw 
F the admission by an amendment of the written statement as that would 
amount to totally displacing the case of the plaintiffi causing irretrievable 
prejudice to them-Correctness of-Held: A prayer for amendment of the 
plaint and a prayer for amendment of the written statement stand on different 
footings-In the case of amendment of a written statement, the courts would 
be more liberal in allowing an amendment than that of a plaint as the 
G question of prejudice would be far less fo the former than in the latter case-
Therefore, addition of a new ground of defence or substituting or altering a 
defence or taking inconsistent pleas in the written statement would be 
permissible-Hence, High Court not justified in rejecting the application for 
amendment of the written statement. 
H 
306 
USHABALASAHEBSWAMiv.KJRANAPPASOSWAMI 
307 
The suit properties originally belonged to one 'V' and on his death 'A' A 
and '8' came to inherit the suit properties. The appellants who were 
defendants Nos. 8 to 14 in the suit where the heirs and legal representatives 
of 'B'. The plaintiffs inherited one-half share of the suit properties jointly 
with defendants Nos. 1 to 7, on the death of' A'. Since the appellants had refused 
to partition the suit properties and possession. The appellants filed their B 
written statement in which they admitted that the plaintiff, with defendant Nos. 
1 to 7 was entitled to one-half share in the suit properties. 
Subsequently, the appellants filed an application for amendment of the 
written statement under Order 6Rule17 of the Code of Civil Procedure, 1908 
in which they sought to add that the plaintiff and defendant Nos. 3 to 7 could C 
not acquire right, title and interest in the joint family properties as they were 
the illegitimate children of the deceased 'A'. The trial court allowed the 
application for amendment 
The High Court allowed the writ petition filed by the defendant- • 
respondent holding that it was not permissible for the appellants to withdraw D 
the admission by an amendment of the written statement as that would amount 
to totally displacing the case of the plaintiff causing irretrievable prejudice 
to him. Hence the appeal. 
Allowing the appeal, the Court 
HELD: 1. From a bare perusal of Order 6 Rule 17 of the Code of Civil 
Procedure, 1908, it is clear that the court is conferred with power, at any 
stage of the proceedings, to allow alteration and amendments of the pleadings 
if it is of the view that such amendments may be necessary for determining 
E 
the real question in controversy between the parties. The proviso to Order 6 
Rule 17 of the Code, however, provides that no application for amendment shall F 
be allowed after the trial has commenced unless the court comes to a 
conclusion that in spite of due diligence, the party could not have raised the 
matter before the commencement of trial. However, proviso to Order 6 Rule 
17 of the Code would not be applicable in the present case, as the trial of the 
suit has not 

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