,,
Jayant Nath, J",,
IA No.14656/2018,,
1. This application is filed by defendants No. 1 and 2 under Order 6 Rules 17 CPC for amendment of the written statement. The plaintiff has filed the,,
accompanying suit seeking a preliminary decree of partition declaring that the plaintiff is entitled to 1/4th share in the suit properties listed in the,,
schedule as also the properties belonging to the Oswal family. A decree of rendition of accounts with respect to the profit and proceeds realized by,,
the defendants from the suit properties as also the properties belonging to the Oswal Family after the demise of Sh.Abhey Kumar Oswal is also,,
sought.,,
Other connected reliefs are also sought in the plaint.,,
2. It is stated that the plaintiff is the eldest son of Late Sh.Abhey Kumar Oswal. It is further stated that plaintiffâ€s father was a Hindu by religion and,,
a substantial shareholder, director and chairperson of the Board of Directors of Oswal Agro Mills Ltd. and Oswal Greentech Ltd. In addition to the",,
above, the father owned large number of movable and immovable properties. It is stated that Sh.Abhey Kumar Oswal died intestate on 29.03.2016.",,
Hence, the present suit.",,
3. The defendants filed the written statement where they have denied the claim of the plaintiff. It has been stated that defendant No. 1 was appointed,,
by Late Sh.Abhey Kumar Oswal as his nominee in his demat account and that the said nomination constitutes the last testament of late Sh.Abhey,,
Kumar Oswal. Other such defences are also taken.,,
4. Issues have yet to be framed. Defendants No. 1 and 2 have now filed the present application seeking amendment in their written statement.,,
Broadly by the amendment what is sought to be added is that on account of the activities of the plaintiff including certain forgery, etc. late Sh.Abhey",,
Kumar Oswal had in October 2006 decided to completely expel, disown, disinherit the plaintiff from his estate. It is stated that late Sh.Abhey Kumar",,
Oswal categorically stated that defendant No. 1 shall be entitled to inherit his estate and the plaintiff will have no right, title or interest in the estate of",,
Late Sh.Abhey Kumar Oswal. An oral family settlement was arrived at in October 2006 in the Oswal Family and as such plaintiff is not entitled to,,
inherit any part of the estate of Late Sh. Abhay Kumar Oswal. It is further stated that Late Sh. Abhay Kumar Oswal took various steps like removal,,
of the plaintiffâ€s name from the HUF account held in HDFC bank. He also included defendant No. 1 and 2 as Coparceners in the HUF account held,,
by him. Late Sh.Abhey Kumar Oswal also appointed defendant No. 1 as his sole nominee in his demat account.,,
5. The plaintiff has strongly opposed the above application.,,
6. I have heard learned senior counsel for the parties.,,
7. Learned senior counsel for defendants No. 1 and 2 has urged that there was nothing in the original written statement to show that the answering,,
defendants had conceded to the plea of the plaintiff that Late Sh.Abhey Kumar Oswal died intestate. It is stated relying upon the paras of the written,,
statement that it was clearly spelt out in the same that Late Sh.Abhey Kumar Oswal in his demat account had nominated defendant No. 1 to the,,
complete exclusion of other parties showing his intention that defendant No. 1 would succeed and inherit the estate. Based on subsequent facts now,,
made available, reliance is also sought to be placed on the family settlement which was inadvertently not mentioned. Hence, the need to amend the",,
written statement. Reliance is placed on the judgments of the Supreme Court in the case of Baldev Singh & Ors. Vs. Manohar Singh & Anr., (2006)",,
6 SCC 498 and Usha Bala Shahed Swami & Ors. vs. Kiran Appaso Swami & Ors., (2007) 5 SCC 60 2to contend that while amending a written",,
statement even contradictory statements or statements substituting or altering a defence or inconsistent pleas are allowed to be added.,,
8. Learned senior counsel for the plaintiff has however strongly urged that there are clear admissions in the written statement by defendants No. 1,,
and 2 which would have led to passing of a decree in favour of the plaintiff. He also relies upon para 9 of the written statement where it is stated that,,
before partition of the estate of Late Sh.Abhey Kumar Oswal all his debts and liabilities are liable to be settled. He states that these admissions cannot,,
be retraced by the defendants by amendment to the written statement. Reliance is placed on the judgment of a Coordinate Bench of this court in,,
Gurcharan Kaur & Ors. vs. Ranjeet Singh Sandhu, 2017 SCC OnLine Del. 1148 9and of the Supreme Court in the case of Modi Spinning & Weaving",,
Mills Co. Ltd. & Anr. vs. M/s. Ladha Ram & Co., (1976) 4 SCC 32.0 He also relies upon the pleadings of defendant No. 1 in the suits filed by her,",,
namely, CS(COMM) 1206/2018 and CS(COMM) 1208/2018 for recovery of the alleged dues from third parties being the LR of Late Sh.Abhey",,
Kumar Oswal. He points that in the said proceedings the plaintiff has been impleaded as one of the LRs of Late Sh.Abhey Kumar Oswal.,,
9. I may first see the legal position regarding the amendment of the written statement. Order 6 Rule 17 CPC reads as follows:-,,
“ORDER VI : PLEADINGS GENERALLY xxx,,
17. Amendment of pleadings,,
The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just,",,
and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.,,
xxxâ€,,
10. The Supreme Court in Baldev Singh & Ors. vs. Manohar Singh & Anr.(supra) noted the legal position regarding the amendment of the written,,
statement as follows:-,,
“15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well,,
as the trial court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground,,
of rejection made by the High Court as well as the trial court. After going through the pleadings and also the statements made in the application for,,
amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application",,
for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding",,
the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could",,
be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not",,
necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff",,
cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no,,
counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not,,
raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the",,
courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate,,
with same rigour in the former than in the latter case.,,
16. This being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the",,
same may not be permissible in the case of plaint. In Modi Spg. and Wvg. Mills Co. Ltd. v. Ladha Ram & Co.[(1976) 4 SCC 320 t]his principle has,,
been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement.,,
Accordingly, the High Court and the trial court had gone wrong in holding that the defendant-appellants are not allowed to take inconsistent pleas in",,
their defence.â€,,
11. Similarly reference may be had to the judgment of the Supreme Court in Usha Bala Shahed Swami & Ors. vs. Kiran Appaso Swami & Ors.,,
(supra) where the Supreme Court stated as follows:-,,
“21. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when,,
admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to,,
hamper the courts in the administration of justice between the parties. In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. [AIR 1957 SC 357 t]his,,
Court observed “that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to,,
operate in that eventâ€.,,
In that case this Court also held,,
“that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the",,
other side should not be subjected to serious injusticeâ€.,,
22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the courts would be more liberal in allowing than that",,
of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or,,
altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court",,
was justified in rejecting the application for amendment of the written statement.â€,,
12. The legal position that follows from the above judgments is that law is more liberal when an application for amendment to a written statement is,,
filed and that while amending a written statement, adding a new ground of defence or substituting or altering a defence is permissible. The courts are",,
more liberal regarding amendment to a written statement.,,
13. I may also refer to the judgment relied upon by the learned senior counsel for the plaintiff. In the case of Modi Spinning & Weaving Mills Co. Ltd.,,
& Anr. vs. M/s. Lodha Ram & Co.(supra) the Supreme Court was dealing with a matter where in the written statement the defendant had stated that,,
the agreement in question is applicable to transactions in which the plaintiff works as a stockiest-cum-distributor of the defendant and is not applicable,,
to the transaction to which the plaintiff acts as a principle. Three years after the filing of the written statement an application was filed for amendment,,
of the written statement where deletion of paragraphs 25 and 26 were sought and substitution of new paragraphs. The proposed amendments sought,,
to add that the plaintiff throughout acted as an agent of the defendant and hence has no locus standi to file the suit. In those facts the Supreme Court,,
held as follows:-,,
“9. The decision of the trial court is correct. The defendants cannot be allowed to change completely the case made in paras 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 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.â€,,
14. Hence, the Supreme Court held that by the proposed amendment in the written statement, the defendant was seeking to displace the plaintiff",,
completely from the admissions made by the defendant in the written statement. It further held that if such amendments were allowed, it would mean",,
that the plaintiff would irretrievably be prejudiced.,,
15. The question is whether factually there is any admission contained in the written statement which is sought to be retraced by the defendants by the,,
proposed amendments. Admissions is defined in the Indian Evidence Act as follows:-,,
“17. Admission defined.â€"An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to",,
any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.â€",,
16. Reference may be had to the judgment of the Division Bench of this court in the case of Daljit Singh & Anr. vs. Hari Steel & General Industries,,
Ltd. & Ors., 2018 SCC OnLine Del. 13327 wherein this court explained Admissions. The Court held as follows:-",,
“What is an admission and what would be the effect thereof - legal position,,
57. Before considering the factual matrix, we may briefly allude to the applicable law thereon. The expression “admission of execution of a party to",,
attest document’ has been statutorily defined in Section 17 of the Evidence Act, 1872 as follows:",,
“17. Admission defined.â€" An admission is a statement, oral or documentary 1[or contained in electronic form], which suggests any inference as",,
to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.â€",,
58. The Black's Law Dictionary explains the expression “admission†as follows:,,
“Any statement or assertion made by a party to a case and offered against that party; an acknowledgment that facts are true.â€,,
17. In this context, I may have a look at paras 10 and 12 of the plaint. As per these paras, it is stated that Late Sh.Abhey Kumar Oswal, a Hindu died",,
intestate without leaving a will or testamentary document. Para 12 of the plaint states that the interest in the two family companies devolved upon the,,
plaintiff and the defendants as class 1 legal heirs. Paras 10 and 12 of the plaint read as follows:-,,
S. No.,Particulars,"Shares of late Mr. Abhey Kumar
Oswal
1.,Oswal Greentech Limited,28540318
2.,Oswal Agro Mills Limited,53530960
on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the",,
limitations on its jurisdiction under Article 227. In Sadhana Lodh v. National Insurance Co. Ltd.[ Sadhana Lodh v. National Insurance Co. Ltd., (2003)",,
3 SCC 524 : 2003 SCC (Cri) 762,] this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only",,
to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227,",,
the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or,,
tribunal has passed an order. The trial court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under,,
Order 6 Rule 17 CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the,,
withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an,,
existing defence. It would also be necessary to note that it was on 21-9-2013 that an amendment of the plaint was allowed by the trial court, following",,
which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the,,
plaintiff.,,
23. There is no merit in the opposition of the plaintiff to the present application. The amendments sought are necessary for the purpose of determining,,
the real question in controversy between the parties.,,
24. In view of the above, the application is allowed subject to cost of Rs.25,000/-",,
