The plaintiff filed a suit for specific performance of contract for sale of half portion of plot of land with buildings thereon bearing No. LR/9/31/2. In the plaint the plaintiff specified the area of the property as about 7000 sq. Yards. The defendants filed their written statement in which they inter alia pleaded that the area of the plot is not 7000 sq. Yards but is about 6000 sq. Yards. It was further pleaded that the plaintiffs were required in terms of the agreement, to enter into a Kabala " which they have failed to execute. However, the defendants asserted that they are ready and willing to perform their part of the agreement dated 23rd June, 1970. It seems that the defendants had filed a suit bearing No. 220 of 1970 against the plaintiff for declaration and injunction which was withdrawn. Consequently after the written statement had been filed the plaintiff made an application under Order V1, r. 17, C. P. C., seeking permission to amend the plaint. The main amendment sought was to delete the words "area of 7000 sq. Yards" wherever they appeared in the plaint and substitute them by the words "contracted area". Some consequential amendments were also sought which are not of significance. The application was contested between the parties but on 23-2-1980 it was granted by the following consent order :- "This application is allowed with consent subject to all just exceptions and pleas that may be raised in the additional written statement. Amended plaint has already been filed which is on record.
Amended written statement to be filed within two weeks."
The defendants filed their amended written statement. The plaintiffs thereupon filed an application under section 151, C. P. C., which is under consideration, alleging that in the amended written statement the defendants have deleted the admissions made by them in the original written statement. According to the plaintiff the defendants should have restricted the amended written statement to the reply in respect of those paragraphs of the plaint which were amended. The prayer in a nutshell is that the defendant's amended written statement should not be accepted on record.
2. I have heard Mr. Z. U. Ahmad and Mr. Mohsin Tyebali learned counsel for the parties. Mr. Z.U.
Ahmad has referred to paragraphs Nos. 4, 9, 10, 14, 15, 16, 17 and 18 of the written statement and has pointed out that in the amended written statement these paragraphs have been materially changed. The main objection is that the entire effort of the defendants has been to delete the admissions made in the written statement and convert them into denial. So far the additional pleas to the extent they do not resile from the admission, there seems to be no objection by the learned counsel for the plaintiffs. He has pointed out that paragraphs Nos. 16, 17 and 18 of the written statement have completely been exchanged arid paragraphs Nos. 19 to 24 have been deleted. The main contention of the learned counsel for the plaintiff is that the pleadings of the parties cannot be amended without per--mission of the Court and since no such permission was granted by the Court wholesale amendment of the written statement is not permissible. In terms of order dated 23-2-1980 the amendment was allowed "subject to just exception". The words `just exception' are of great significance. Themean that the consent was given on the condition that the defendants` would be entitled to take such plea as may be available to them in law. The defendants cannot raise such pleas which may not be permissible under law. The defendants had agreed to the amendment subject to their legal rights. It has, therefore, to be seen whether in changing the written statement the defendants have acted within their legal right and in a lawful manner.
3. Mr. Z. U. Ahmad the learned counsel for the plaintiff has con--tended that no party is permitted to resile from the admissions made in the written statement. To support his contention he has relied on AIR 1925 Mad. 960, AIR 1948 Nag. 110, AIR 1950 Mad. 45, A I .R 1946 Mad. 497 and AIR 1930 Lab. 278. In the first case it was held that if a plaint is allowed to be amended then an opportunity should be given to the defendant to meet the amended claim. In the second and 3rd cases it was held that the defendant cannot be allowed to amend his written statement to completely change it and that an admission made by a defendant cannot be allowed to be changed. In the fourth case it was held that substitution of one written statement for another written statement cannot be allowed as there is no provision to allow substitution in toto.
In the last case it was held that a new case cannot be introduced by way of amendment. The proposition of law advanced by these authorities cannot be disputed. However the present suit raises a some what different proposition of law viz. Whether the amended written statement should be confined and restricted to the amended portion of the plaint and other additional pleas should not be raised without the express permission of the Court as provided under Order VI, rule 17, C. P. C.
And further, whether in the amended written statement the defendant is entitled to change the admission made in the earlier written statement and resile from it?
4. Mr. Moshin Tyebali the learned counsel for the defendants has submitted that if the, plaintiffs have amended their plaint and opportunity is given to the defendants to file their amended written statement then the defendants are entitled to file an amended written statement not necessarily restricting to the reply to tire amended portion of the plaint but such other new pleas that may be available to the defendants at the time of filing the amended written statement can also be raised.
To substantiate his conten--tion the learned counsel has referred to Gandhar Lal v. Krishna Dut AIR 1960 Pb. 575Reliance has been placed on the observation that defendant filing an amended written statement cannot be restricted or limited to file a written statement only to the amendments made in the plaint.
5. This case is completely distinguishable on facts. In this case the parties were brothers. The respondent had purchased the disputed land in an auction where bid was given by him in the joint names of the parties. As the appellant asserted his right on half of the land the respondent filed a suit for declaration that the appellant was benamidar because the property was purchased by the respondent from his own funds at a time when appellant was a minor and there were no family funds available. It seems from the judgment that during the pendency of the suit plaintiff sought amendment of the plaint on the ground that after institution of the suit, the defendant had forcibly taken possession on half of the disputed land, and therefore, the suit for declaration should be allowed to be suitably amended so as to convert it into a suit for possession with respect to half of the land occupied by the defendant. The amendment was allowed and in the amended written state--ment the defendant raised two more pleas viz. That after purchasing the pro--perty plaintiff brought it in the "common stock" thus making it a joint Hindu property and that the plaintiff had purchased the property to benefit the defendant. No objection was taken by the plaintiff and the trial Court proceeded on the basis of the amended pleading. However in appeal the District Judge observed that the new pleas contained in the fresh written statement were unauthorised and deserved to be rejected. While repelling this contention the High Court observed that "there is no rule of law, statutory or otherwise, which restricts or limits the defendant when he is called upon to file a written statement to an amended plaint, to contest the plaintiffs' claim, to any particular pleas. Pleas in a written statement to an amended plaint are not exclusively controlled or governed by the provisions of Order VI, rule 17 of the Code. The provisions of Order VIII are equally if not more relevant and important in this connection".
6. In that case the question was not whether in an amended written statement the defendant could resile from the admissions made -in the earlier written statement. Further in that case the plaintiff had not raised any objec--tion to the amendment made in the written statement but here it. Is otherwise.
7. The pleading can be amended only with the leave of the Court. The Privy Council in Luigi AmbrosiniLimited v. Bakare 7'orka AIR 1929PC306,held that if a party is allowed to amend its pleading the opposite-party should be given an opportunity of dealing with the matters involved on the new basis which the amendment established. The Court while granting amendment in plaint determines whether and if so, to what extent further proceedings are called for. In cases where amendment is formal in character no further proceedings may be necessary. Order VIII, rule 9 of the Code provides that no pleading subsequent to the written statement other than by way of defence to a set-off shall be presented except by leave of the Court, on such terms as the Court may think fit. The Court is further empowered at any time to require a written statement or additional written statement from any of the parties. Hence the amended written statement or additional written statement can be filed only with the leave of the Court and no party has an inherent right to amend it at its own discretion. When a plaint is amended and the defendant is allowed to file its amended written statement unless otherwise specifically provided in the order itself the defendant can raise all the legal pleas and only such factual defences can be raised which are legally per--missible, consequential and necessary to meet the case set up in the amended plaint. The defendant does not acquire unfettered rights to change the written statement in toto or substitute it by a completely new written state--ment. Although the provisions of Order VI, rule 17, C. P. C., may not strictly govern such amendment in the written statement. The Court is entitled to apply the principles relating to amendment of pleading while examining the amended written statement. All such amendments which a defendant is not entitled to plead or are in contravention of the principles governing amend--ment of pleading will not be allowed to be taken in the amended written statement without the permission of the Court. The Court has vast discretionary powers to grant amendment and should be liberally exercised to pro mote the ends of justice and determine the real controversy between the parties. While filing amended written statement besides replying to the amended part of the plaint, the defendant can also raise pleas which may be legally available to him. But it does not entitle the defendant to resile from the admission made in the earlier written statement or to put up a completely new or inconsistent case as pleaded in the earlier written statement. Admission made by ;a party in the pleading cannot be revoked without the leave of the Court.
8. Considering the nature of amendment ,and the order granting it, the defendant's reply essentially should have been, restricted to the amended part of the plaint and the additional pleas which were available to them From the amended written statement it seems that the defendants have omitted all such averments which prima facie on proper construction may amount to an admission though restricted and qualified. Deletion of such averments is not permissible. In the circumstances the defendants will be entitled to the additional pleas that have been raised in the amended written statement but they will not be entitled to delete such portions from the written statement which may be construed as admissions on the part of the defendants. Both the written statements shall remain on record but admis--sions made in the original written statement filed by the defendants earlier shall not in any manner be treated to have been deleted or overridden by the amended written statement.
The application is granted in these terms.