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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3914  OF 2013 [Arising out of SLP (C) No.12497 of 2008]

S. Malla Reddy …    Appellant(s)

vs.

M/s. Future Builders  Co-operative Housing Society & Ors.               …  Respondent(s)

WITH

CIVIL APPEAL NO. 3916 OF 2013 [Arising out of SLP (C) No.17029 of 2009]

Jai Lakshmi          …    Appellant(s)

vs.

M/s Future Builders Co-operative Housing Society & Ors.          …  Respondent(s)

AND

CIVIL APPEAL NO.3915  OF 2013 [Arising out of SLP (C) No.28828 of 2008]

Raghava Reddy & Anr.           …   Appellant(s)

vs.

M/s Future Builders Co-operative Housing Society & Ors.          …  Respondent(s)

J U D G M E N T

M.Y. EQBAL, J.

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Leave granted.

2. The  defendants  (appellants  herein)  have  assailed  the  

common order  dated 28.12.2007 passed by a learned Judge of  the  

Andhra Pradesh High Court,  whereby  the Revision Petitions filed by  

the  plaintiff-respondent  (M/s  Future  Builders  Coop  Society)  under  

Article  227 of  the  Constitution  of  India  have been  allowed and the  

order  passed by  the  trial  court  allowing  amendment  in  the  written  

statement has been set aside.

3. The facts of the case lie in a narrow compass.

4. The  plaintiff-respondent  M/s.  Future  Builders  Co-op.  

Housing Society (in short “the plaintiff Society”) filed a suit against the  

defendant-appellants for declaration of title in respect of the property  

mentioned in the schedule of the plaint (in short “the suit property”)  

and  for   perpetual  injunction  restraining  the  defendants  from  

interfering with possession.  The case of  the plaintiff-Society is that  

the   Society  is  a  registered  Society  under  the  Andhra  Pradesh  Co-

operative Societies Act with the object to acquire or purchase land for  

the benefit of its members and render it fit for habitation.  The Society  

was  founded  by  several  promoters  including  the  first  defendant-S.  

Malla Reddy (appellant herein).  The plaintiff’s further case is that for  

the purpose of  registration  under  Co-operative Societies Act,  it  was  

necessary to show to the Registrar  that they have entered into an  

agreement for purchase of land for the benefit of its members.  It was  

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alleged that before the Society was registered, its promoters identified  

the suit land as fit for the purpose and negotiated with the owner and  

entrusted the work to the first defendant for effecting purchase after  

measurement and a sum of Rs. 10,000/- was paid to him.  The first  

defendant  alleged  to  have  executed  an  agreement  on  8.3.1978  in  

favour of the Chief Promoter of the Society,  inter alia, agreeing that  

the first defendant will get the land measured and obtain legal opinion  

and pay the money to the land owner.  It was agreed that the sale  

deed would be obtained in the name of the first defendant and a patta  

would be got transferred in his name or of his nominee for the benefit  

of  the  Society.  The  Society  was  registered  on  28.08.1981  and  

defendant No.1 having obtained a Sale Deed dated 02.01.1979 and  

transfer  of  patta in the name of himself  and defendant Nos. 2 to 4  

(appellants herein), who are his wife and sons in respect of the suit  

property,  had delivered  possession to  the  Society  and  they  further  

agreed to  secure  the  patta  in  the  name of  the  plaintiff-Society.   A  

Memorandum of Agreement dated 16.09.1981 was also executed to  

the  effect  that  the  plaintiff  would  hold  the  land  as  owner.   It  was  

alleged by the plaintiff-Society that the defendants, in spite of several  

requests  and  demands,  were  postponing  the  transfer  of  patta  in  

respect of the suit property in its name on one pretext or the other.  

Hence, suit.

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5. On being summoned, the defendants appeared and filed a  

joint     written statement on 19.01.1995 admitting the claim of the  

plaintiff   stating  that  after  filing  of  the  suit  there  was a  mediation  

wherein  the  dispute  was  settled  and,  accordingly,  a  sum  of  Rs.  

1,00,000/- was paid to them and they were then willing to transfer the  

patta in respect of the suit property in favour of the plaintiff who had  

already acquired title. The defendants, therefore, prayed to the court  

to decree the suit.

6. Controversy started when the defendants after filing of the  

written  statement  and  admitting  the  claim  of  the  plaintiff  filed  a  

petition being I.A. No.2217 of 1995, later renumbered as I.A. No.162 of  

2000,  seeking permission  to change their  advocates on the ground  

that  they were  acting detrimental  to  their  interest  by filing  written  

statement contrary to the instructions.  The said petition was objected  

by the plaintiff.  The trial court by order dated 07.02.2000 permitted  

the  defendants  to  change  their  advocates  without  prejudice  to  the  

rights  of  the  parties.   Thereafter,  defendants  filed  another  petition  

under Order VI Rule 16 of the Code of Civil Procedure (CPC) being I.A.  

No.415 of 2000 on 28.02.2000 seeking leave of the court to strike out  

the  pleadings  in  the  written  statement  or  to  expunge  the  written  

statement and to permit them to file a detailed written statement.  It  

was alleged that the written statement filed earlier was in collusion  

with the plaintiff  contrary to the instructions given by them to their  

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advocate.   Another  petition  was  filed  by  the  defendants  being  I.A.  

No.416 of 2000 under Order VIII Rule  9 and Order VI Rule 5 of CPC  

seeking leave of  the court  to permit  them to file a detailed written  

statement.  Some more developments took place during the pendency  

of  those  petitions.  The  youngest  son  of  the  first  defendant  filed  a  

petition being l.A. 1819 of 2000 seeking leave of the court to implead  

him as party to those two interlocutory petitions which was, however,  

allowed and the said son was brought on record.  

7. The trial court after hearing the parties dismissed both the  

petitions being I.A. Nos.415 and 416  of 2000 by common order dated  

04.01.2002.  The defendant- appellants challenged the said order by  

filing  Civil  Revisions  in  the High Court  being  CRP Nos.502 and 505  

which  were  ultimately  dismissed  on  18.09.2002.   The  defendant-

appellants then filed review petition being Review CMP No. 2102 of  

2003 which was also dismissed on 25.06.2003.  The defendants then  

preferred appeals to this Court in Civil Appeal Nos. 7940 to 7942 of  

2004 which were also dismissed on 15.03.2007.   

8. After  the  defendants  lost  the  claim upto  this  Court  and  

their prayer was refused, a fresh petition under Order VI Rule 17 CPC  

was filed seeking leave of the Court to amend the written statement.  

The said application was registered as I.A.  SR No. 593 of 2007.  The  

trial court rejected the said application by a non-speaking order.  The  

order was challenged in the High Court in Revision which was disposed  

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of with the directions to the trial court to register the application and  

dispose of the same by passing a reasoned order.  The trial court in  

compliance of the aforesaid directions finally heard the amendment  

petition  and  by  order  dated  27.09.2007  allowed  the  petition  

permitting the defendants to amend  the written statement.   

9. The  plaintiff-Society  challenged  the  aforesaid  order  

allowing  amendment  of  the  written  statement  by  filing  revision  

petitions  before the High Court.  The said revision petitions filed by  

the plaintiff-Society under Article 227 were heard at length and finally  

those  petitions  were  allowed  by  the  High  Court  vide  order  dated  

28.12.2007 and the order of the trial court allowing amendment of the  

written  statement  was set  aside.   Hence,  these appeals  by  special  

leave filed by the defendant-appellants.

10. We  have  heard  the  learned  counsel  appearing  for  the  

parties.   Mr.  Dushyant  A. Dave,  Senior  Advocate and Mr. Huzefa A.  

Ahmadi, Senior Advocate appearing for the defendant-appellants drew  

our attention to various decisions of this Court for the proposition that  

the admission made in the written statement can be withdrawn and  

inconsistent  plea  can  be  taken  in  the  written  statement.   Learned  

counsel also tried to impress us that the order passed on the petition  

under Order VI Rule 16 and Order VIII Rule 9 will not operate as  res  

judicata on the subsequent application filed under Order VI Rule 17 of  

CPC. Learned counsel submitted that the High Court has not correctly  

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appreciated the settled principle of law  and has passed the impugned  

order  without considering the entire gamut of the case.  

11.   On the other hand, Mr. L. Nageswara Rao, learned Senior  

Advocate appearing for the plaintiff-Society (respondent herein) firstly  

contended that the application for amendment is liable to be rejected  

on the sole ground that it was filed 13 years after the institution of the  

suit  and  that  too  when  the  trial  of  the  suit  had  begun  and  the  

plaintiff’s witness was cross- examined.   Mr. Rao contended that the  

disruptive plea cannot be allowed to be taken by way of amendment  

in  the  written  statement.   According  to  the  learned  counsel,  the  

ground taken by the defendants for amending the written statement  

has already been discussed in the earlier petition filed under Order VI  

Rule 16 and that under Order VIII Rule 9 and Order VI Rule 5 CPC.  The  

said applications were rejected by the trial court and the order was  

affirmed by this Court also.

12. Before appreciating the rival contentions, we would like to  

first  reproduce  the  written  statement  filed  by  the  defendant-

appellants in the suit.  The written statement  contains of only four  

paragraphs, which are as under:-

“WRITTEN STATEMENT FILED UNDER ORDER 8 RULE 1  CVIL PROCEDURE CODE by Defendants  1 to 4

1.  The first defendant was entrusted with the work of  purchase of the land for the Plaintiff’s Society before  its  incorporation.   Since  there  was  delay  in  the  registration and incorporation of the Society, the suit  land  was  purchased  in  the  name  of  the  First  

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Defendant who is also one of the Promoters from Sri  Mohammad  Sarvar  and  others  and  the  patta  was  transferred in the name of these defendants.  These  defendants held it for the benefit of the plaintiffs and  after  the  Society  was  incorporated  on  28.8.2001,  delivered the land to the plaintiff and also executed a  Memorandum dated 16.9.1981 which was ratified by  the Plaintiff Society.

2.    One of the terms of the Memorandum was that  the plaintiff  agreed to pay the expenses incurred by  the defendants for the development and protection of  the land.  Since the plaintiff postponed the settlement  of  accounts,  these  defendants  did  not  apply  for  transfer of patta in favour of the plaintiff.

3.      After  the  suit  is  filed  there  is  mediation  and  settlement and a sum of Rs. 1,00,000/- (Rupees one  lakhs only) is paid as full quid to these defendants and  these defendants are willing to transfer of the patta in  favour  of  the plaintiff  who has already acquired the  title as stated in the plaint.

4.      Hence the suit may be decreed as prayed for  but without costs.

Defendants 1. 2. 3. 4.

Counsel for the Defendants 1 to 4 Verification The  facts  stated  above  are  true  to  the  best  of  our  knowledge, belief and information.”

13. From  bare  perusal  of  the  written  statement,  it  is  

manifestly clear that the defendant-appellants categorically admitted  

not only the case of the plaintiff but also acknowledged receipt of Rs.  

1,00,000/- and their willingness for transfer of patta in favour of the  

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plaintiff.  The defendants, on the basis of such admission, prayed to  

the  court  that the suit be decreed but without any costs.

14. As  noticed  above,  the  defendant-appellants  filed  

application on 28.02.2000 under Order VI Rule 16 of CPC being I.A. No.  

415 of 2000 praying that the earlier written statement be struck out  

since the same was against their interests.  Another application being  

I.A.No.416 of 2000 under Order  VIII Rule 9 CPC was filed praying that  

the defendants may be permitted to file detailed written statement in  

the suit since the earlier written statement filed by them was against  

their interests. Both applications were taken up together by the trial  

court and disposed of by common order dated 04.01.2002.  The trial  

court  while  rejecting the aforementioned two applications  held that  

the defendant-appellants cannot be allowed to substitute their written  

statement in the suit whereunder there was an admission of the claim  

of the plaintiff-Society. While rejecting the applications, the trial court  

elaborately  discussed  the  facts  of  the  case  and  considered  the  

arguments advanced by the lawyers as also the decisions relied upon  

by them with regard to withdrawal of admission by filing fresh written  

statement.

15. At this stage, we must mention that even before the suit  

was  instituted  by  the  plaintiff-Society,  the  defendants  had  filed  a  

caveat  duly  supported  by  affidavit  through  the  same  advocate  

wherein  the entire  claim of  the plaintiff-Society was admitted.   The  

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only grievance made in the caveat was that without settlement of the  

amount  due  as  agreed  under  the  Memorandum of  Agreement,  the  

plaintiff-Society was trying to lay out the suit land and to dispose of  

the same without paying the amount due.  The relevant paragraphs of  

the trial court order dated 04.01.2002 are quoted hereinbelow  (from  

pages 165-170 of paper book):

“16. The  learned  counsel  for  the  petitioner,  referring  to  the  earlier  suit  litigation  between  the  defendants  and  others,  contended  that  there  is  no  reason for the defendants to admit the suit claim of  the  plaintiffs  society  but  for  the  reasons  that  fraud  was played upon the defendants in filing their written  statement.   The  learned  counsel  for  the  petitioner  relying  upon  the  decision  in  BHIKAJI  KESHAO JOSHI  AND  ANOTHER  vs.  BRIJLAL  NANDLAL  BIYANI  and  OTHERS (AIR 1955 SC 610) contended that the Court  can  order  strike  out  of  the  written  statement  and  permit  the  defendants  to  file  substituted  written  statement   with  specific  pleadings.   In  the  said  decision,  the  petitioner  in  the  said  election  petition  made  vague  allegations  of  corrupt  practices  of  the  respondent and in the said circumstances it was found  that  the  court  can  exercise  its  powers  and  call  for  better particulars.  It is not the case of the petitioners  –  defendants  herein  that  their  written  statement  pleadings  are  vague  and  that  therefore,  to  furnish  better  particulars  the  earlier  written  statement  filed  on their  behalf  may be struck out and they may be  permitted  to  file  a  detailed  substituted  written  statement.  In the written statement filed on behalf of  the defendants in the suit OS No.408/94 (OS 1 of 2000  on  the  file  of  this  court)  the  defendants  had  categorically admitted the entire suit claim and have  further mentioned that they had no objection for the  suit to be decreed.  No doubt, it is the contention of  the  petitioners  that  their  advocate  Sri  Sunil  Kumar  obtained their signatures on blank paper and that  is  contrary to their instructions he prepared the written  statement  in  collusion  with  the  plaintiff-  society  admitting  the  suit  claim  for  which  they  had  

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complained against the said advocate to Bar Council  of Andhra Pradesh. Ex.B.1 is the Xerox certified copy  of caveat number 178/94 on the file of IIIrd Additional  Judge, City Civil Court, against the plaintiff society on  07.07.1994.   In  the  said  caveat  petition  also,  the  defendants in the suit admitted the entire claim of the  plaintiff-society  but  the grievance of  the defendants  under  that  caveat  was  without  settlement  of  the  amount  due  as  agreed  under  the  memorandum  of  agreement, the plaintiff society was trying to lay out  the suit land and to dispose it of without paying his  amount  and that,  therefore,  if  any injunction  suit  is  filed against him with respect to the said property, he  may be given notice.  There is no explanation given  by  the  petitioners  herein  in  these  petitions  with  respect to the said admission of the defendants herein  in the said caveat petition.  In fact, it was pleaded in  the written statement in question by the defendants  that after the suit was filed there was mediation and  sum  of  Rs.  1,00,000/-  was  paid  to  them  towards  settlement.   No doubt  the  said  caveat  petition  was  also filed by the same advocate Sri Sunil Kumar but in  the affidavit filed in support of these two petitions, the  1st defendant did not explain about his admissions in  the  said  caveat  petition  with  respect  to  the  suit  schedule properties in favour of the plaintiff society.

17. The  learned  counsel  for  the  1st  defendant-plaintiff Society relying upon the decisions  in  MODI  SPINNING  AND  WEAVING  MILLS  COMPANY  LIMITED  AND  ANOTHER  VS.  M/S  LADHA  RAM  AND  COMPANY  (AIR  1977  Supreme  Court  680),  B.K.  NARAYANA  PILLAI  AND  PARAMESWARAN  PILLAI  AND  ANOTHER (2000)  1  Supreme  Court  Cases  712)  and  HEERALAL AND KALYAN MALAND AND OTHERS (1998)  1  Supreme  Court  Cases  278)  contended  that  any  amendment  introducing  entirely  different  new  case  and  seeking  to  displace  the  plaintiff  the  benefit  completed  from  the  admission  made  by  the  defendants  in  the  written  statement,  is  not  permissible.   In the decision in  MODI SPINNING AND  WEAVING  MILLS  COMPANY  LIMITED  VS.  M/S  LADHA  RAM AND COMPANY (AIR 1988 Supreme Court 680) by  means  of  an  amendment  the  defendant  wanted  to  introduce an entirely different case.  In the facts and  said circumstances,  it  was held  that  the defendants  

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cannot  be  allowed  to  change  completely  the  case  made out in their written statement and to substitute  an  entirely  different  new  case  and  that  if  such  amendments  are  allowed  the  plaintiffs  will  be  irretrievably  prejudiced  by  being  denied  the  opportunity  of  extracting  the  admission  from  the  defendants.   In  HEERALAL   vs.  KAYALAN  MAL  AND  OTHERS (1998)  1  Supreme  Court  Cases  278,  and  HEERALAL  vs. KAYALAN MAL AND OTHERS (AIR 1998  Supreme Court  618), it was held that once the written  statement  contains  an  admission  in  favour  of  the  plaintiff,  the  amendment  of  such  admission  of  the  defendants  cannot  be  allowed to  be  withdrawn  and  such  withdrawal  would  amount  to  totally  displacing  the  case  of  the  plaintiff  which  would  cause  him  irretrievable  prejudice.   In  B.K.  Narayana  Pillai  and  Parameshwaran Pillai and Another (2000) 1 Supreme  Court  Cases 712,  it  was held  though the  defendant  has a right to take alternative pleas in defence by way  of  amendment,  it  would  be  subject  to  qualification  that  (i)  Proposed  amendment  should  not  result  in  injustice to the other side;  (ii) any admission made in  favour  of  plaintiff  should not be withdrawn;  and (iii)  inconsistent  and  contradictory  allegations  which  negate  admitted  facts should  not  be  raised.   Under  the present petitions, the petitioners – defendants are  intending to take away the admission made by them  in regard to the suit claim of the plaintiff society.  The  law is that no additional written statement should not  set  up  a  totally  new  case  or  state  facts  at  direct  variance with the original written statement so as to  completely change the issue in the case.  This is not a  case  where  the  defendants  are  intending  to  take  alternative pleas or that they are intending to explain  the  vague  pleadings  made by them in  their  written  statement  filed.   This  is  also  not  a  petition  to  file  additional  written  statement  but  as  a  petition  to  substitute the original  written statement to get over  the admissions made in favour of the plaintiff society.  There  is  no  material  placed  before  the  court  to  substantiate  their  affidavit.   As  already  stated,  the  documents  filed  are  not  helpful  to  support  the  affidavit of the petitioner in regard to the allegations  made against their previous advocate so as to request  the  court  to  permit  them to  file  a  detailed  written  statement,  in  the  place  of  their  earlier  written  

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statement in which they had admitted the entire claim  of the plaintiff society.  A perusal of written statement  which is sought to be substituted in the place of the  earlier  written  statement  discloses  that  the  defendants  plead  an  entire  new  case  against  the  admissions made by them in the written  statement.  In  view  of  the  settled  law  of  the  Apex  Court  the  petitioners cannot be permitted to request the court  to  strike  out  the  earlier  written  statement  filed  by  them or to permit them to substitute a fresh written  statement in contrary to the admission made by them  in their written statement.

18. No  doubt,  the  petitioner  had  filed  criminal  proceedings against the said Advocate and others and  copies of those criminal proceedings are filed in this  petition.   Admittedly,  the  said  Criminal  Case  is  pending.  Moreover, it was subsequent to the filing of  I.A.  2217/95.   It  is  well–established  principle  of  law  that the decisions of the Civil  Courts are binding on  the criminal courts and the converse is not true (vide  decision in Karamchand vs. Union of India (AIR 1977  Supreme Court  1244).   The plaintiff  society is not a  party to the earlier civil proceedings, which are filed in  this  petition  on  the  behalf  of  the  Petitioners.  Therefore, those documents, which are filed on behalf  of the petitioners – defendants are not binding on the  first  respondent  –  plaintiff  society.   The  revenue  records, filed are also not helpful for the petitioners in  support of their contention in this petition.  Whether  the chief promoter was by the date of the agreement  was a minor as contended by the petitioners is also  not  a  question  relevant  for  the  purpose  of  this  petition.   Thus,  this  court  holds  that  the documents  filed on behalf  of  the petitioner do not advance the  claim of the petitions.  For the foregoing reasons and  in  view of  the  law enunciated  by  the  Hon’ble  Apex  Court, the petitioners–defendants cannot be permitted  to  substitute  the  earlier  written  statement  filed  by  them in the suit whereunder there was an admission  of the suit claim of the plaintiffs society, by way of an  entirely  new  written  statement  taking  contradicting  pleas.  Thus this court does not find any merits in the  petitions.

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19. In the result,  the petitions  are dismissed but  without costs.”

16. On the basis of  the findings recorded by the trial  court,  

defendants’ two petitions under Order VIII Rule 9 and Order VI Rule 16  

CPC  were dismissed holding that the defendants cannot be permitted  

to  substitute  the  earlier  written  statement  wherein  there  was  an  

admission of the suit claim of the plaintiff-Society.

17. Aggrieved  by  the  aforesaid  order,  the  defendants  

preferred revision petitions before the High Court.   Before the High  

Court, it was argued that  though some admissions were made in the  

written  statement,  the  same  can  be  withdrawn  by  filing  a  fresh  

detailed written statement.    Dismissing the said revision petitions,  

the High Court  in its order  dated 18.09.2002 (pages 184 to 186 of  

paperbook) observed:-

“The court below had elaborately discussed this  aspect I agree with the reasoning and finding thereof  given by the court below on this aspect and I hold that  they are perfect and valid.

Before the court below the defendant relied on  a  Judgment  reported  in  Bhikaji  Keshao  Joshi  and  another  vs.  Brijlal  Nadanlal  Biyani  and  others  (AIR  1955 SC 610) and contended that the court can order  striking out of the written statement and permit  the  defendants to file substituted written statement with  specific  pleadings.   The  court  below  rightly  distinguished  the  same  and  held  that  it  is  not  applicable.

The lower appellate court while dismissing the  I.As. relied on a judgment of the Apex Court reported  

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in  HEERALAL  vs.  KAYALAN  MAL  AND  OTHERS  (AIR  1998  SC  618),  wherein  it  was  held  that  once  the  written statement contains an admission in favour of  the plaintiff, the amendment of such admission of the  defendants  cannot  be  allowed to  be  withdrawn  and  such  withdrawal  would  amount  to  totally  displacing  the  case  of  the  plaintiff  which  would  cause  him  irretrievable  prejudice.   In  another  decision  of  the  Supreme Court referred to by the Court below in B.K.  NARAYANA  PILLAI  vs.  PARAMESHWARAN  PILLAI  AND  ANOTHER (2000 (1) SCC 712) it was held that though  the defendant has a right to take alternative pleas in  defence by way of amendment, it would be subject to  qualifications  which  are  (1)  proposed  amendment  should not result in injustice to the other side and (2)  any admission made in favour of the plaintiff  should  not  be  withdrawn  and  (3)  inconsistent  and  contradictory allegations which negate admitted facts  should not be raised.   

In  the  present  case  the  question  now  is  whether  the  admission  made  by  the  defendant  in  favour  of  the  plaintiff  can  be  withdrawn  and  the  answer  in  the  language  of  the  apex  court,  is  ‘not  permissible’.

As already discussed the admissions made in  the  written  statement  are  absolutely  matching  with  the original  stand taken by the 1st defendant  in the  affidavit filed to his caveat petition and also with the  pleadings and the only dispute raised is with regard to  payment of money to the defendant.  In such a case, I  am of  the  strong  view  that  the  defendant  had  not  approached the  court  with  clean hands in  filing  the  present I.As.

It has to be further noticed that the allegations  made against the counsel are not established so far.  Mere filing of a complaint before the police or before  the Bar Council of India, in the circumstances like the  present  one would only  jeopardize the decency and  dignity  of  the  profession  of  the  Advocate.   This  attitude  of  making  wild  and  baseless  allegations  against the counsel has to be dissuaded by all means.  However, this observation shall not be understood as  an opinion expressed by this court on the proceedings  already  initiated  and  pending  against  the  said  

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counsel.  To put in a different way, the original stand  of  the  defendant  as  stated  in  the  affidavit  filed  in  support  of  the  caveat  petition,  demolishes  or  cuts  across the very basis for filing the present I.As.  I am  of the further view that if these types of allegations  are made without substantiating them and if they are  encouraged,  it  would  lead  to  a  situation  where  litigants with false cases would resort to smudging the  career of genuine or innocent advocates.  The conduct  on the part of the defendant is palpably mischievous  and this court  cannot lend any kind of  support  to a  litigant  like the defendant,  who has approached the  court with unclean hands.

It  is  also  brought  to  the  notice  of  this  Court  that in another suit which is not connected with the  present suit, the defendant resorted to similar type of  allegations against another counsel, and of course the  trial  court  did  not  take  into  consideration  those  allegations.

The court below had discussed in detail all the  aspects  and  dismissed  the  I.As.  with  cogent  and  convincing reasons and I do not find any valid ground  to  interfere  with  the  same.   Accordingly,  I  pass the  order as under.

The  revisions  petitions  are  dismissed  with  costs.”

18. The relevant paragraphs of the orders passed by the trial  

court and the High Court have been quoted hereinbefore mainly for  

the reason that while considering the petitions under Order VIII Rule 9  

and Order VI Rule 16 both the courts have also gone into the question  

as to whether those admissions could be withdrawn by permitting the  

defendants to file a fresh written statement or by striking out of the  

earlier written statement.  

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19. Aggrieved by the above said orders, the appellants moved  

this Court in Civil Appeal No.7940-7942 of 2004.  Finding no merit, this  

Court dismissed the appeals by order dated 15.03.2007.

20. Instead  of  participating  in  the  suit,  the  defendant-

appellants filed another petition purported to be under Order VI Rule  

17  CPC  seeking  amendment  of  the  written  statement.   The  said  

amendment petition was allowed by the trial court and against that  

the  plaintiff-Society  preferred  revision  before  the  High  Court.   The  

High Court by passing the impugned order dated 28.12.2007 allowed  

the revision petitions and set aside the order passed by the trial court.  

The High Court held as under :-

“15. The  ratio  in  THE  UNITED  PROVINCES  ELECTRIC SUPPLY CO. LTD. case (AIR  1972  SC  1201) that decision on any particular point given in an  order of remand does not operate as res judicata in an  appeal filed against the final  order passed after  the  remand;  does  not  apply  to  the  facts  of  this  case  because there is no ‘order of remand’ in this case as  plaintiff is not relying on any of the observations in an  ‘order of remand’ to contest the applications made by  the defendants.

16. In view of the ratio in SATYADHYAN GHOSAL  case  (AIR  1960  SC  941),  ARJUN  SINGH case  (AIR  1964  SC  993)  and  THE  UNITED  PROVINCES  ELECTRIC  SUPPLY  CO.  LTD. case  (..supra)  successive applications for the same relief cannot be  permitted, and they can even be rejected as an abuse  of the process of Court.

17. It is contended by the learned counsel for the  defendants that subsequent to the filing of I.A. No.416  of 2000, defendants came to know through the report  of an expert that the written statement filed on their  behalf was typed on the same typewriter on which the  

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plaint was typed.  In the common order challenged in  these  revisions,  the  trial  Court  considered  that  contention  and  held  that  that  contention  has  to  be  decided at the time of trial, but cannot be considered  at this stage.  For the reasons given by the trial court,  that finding cannot be said to be erroneous.

18. As  rightly  contended  by  the  learned  counsel  for the plaintiff, the trial Court which agreed with the  contention of the plaintiff that defendants cannot by  invoking  the  plea  of  fraud  seek  the  amendment  sought, allowed the petitions only on the basis of the  observations  made in  UDAY SHANKAR TRIYAR V.  RAM KALEWAR PRASAD SINGH  AIR 2006 SC 269.  In the very same judgment the apex Court held that  procedure, a hand maiden to justice, should never be  made a tool to carry justice or perpetuate injustice by  any  oppressive  or  punitive  use.   The  trial  Court  without  keeping  in  view  the  fact  the  defendants  cannot repeatedly file the petition for the same relief  which  was  negatived  earlier,  in  a  different  form  by  quoting  different  provisions  of  law,  thought  it  fit  to  allow the petitions and thereby virtually set at naught  the order of dismissal of I.A.Nos.415 and 416 of 2000  passed by it earlier which order was confirmed by this  Court and the Apex Court also.”

21. Before going into the merits of the case, we would like to  

refer two of the provisions viz. Order VI Rule 16 and Order VI Rule 17  

CPC which are involved in the instant case.  These two provisions read  

as under:-

“16. Striking out pleadings— The Court  may at  any stage of the proceedings order to be struck out  or amended any matter in any pleading—  

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(a) which may be unnecessary, scandalous, frivolous  or vexatious, or  

(b) which may tend to prejudice, embarrass or delay  the fair trail of the suit, or  

(c) which is otherwise an abuse of the process of the  Court.]  

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.   

       Provided that no application for amendment  shall  be  allowed  after  the  trial  has  commenced,  unless  the  court  comes  to  the  conclusion  that  in  spite  of  due  diligence,  the  party  could  not  have  raised  the  matter  before  the  commencement  of  trial.”

22. Order  VI  Rule  16 CPC has been  substituted  by  the  CPC  

(Amendment) Act, 1976.  This provision deals with the amendment or  

striking out of the pleadings, which a party desires to be made in his  

opponent’s pleadings.  In other words, the plaintiff or the defendant  

may  ask the court for striking out pleadings of his opponent on the  

ground that the pleadings are shown to be unnecessary, scandalous,  

frivolous or vexatious.  This Rule is based on the principle of ex debito  

justitia.   The court  is empowered under this Rule to strike out any  

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matter in the pleadings that appears to be unnecessary, scandalous,  

frivolous or vexatious or which tends to prejudice, embarrass or delay  

the fair trial of the suit.  

23.       On the other hand, Order VI Rule 17 CPC empowers the court   

to allow either party to alter or amend his own pleading and on such  

application the court may allow the parties to amend their pleadings  

subject to certain conditions enumerated in the said Rule.

24. Although  the  defendant-appellants  filed  the  petition  for  

striking  out  their  own pleading  i.e.  written  statement,  labelling  the  

petition  as  under  Order  VI  Rule  16  CPC,  but  in  substance  the  

application was dealt with as if under Order VI Rule 17 CPC inasmuch  

as the trial court discussed the facts of the case and did not permit the  

defendants to substitute the written statement whereunder there was  

an admission of the suit claim of the plaintiff-Society.   The relevant  

portion of the order quoted hereinabove reveals that the trial  court  

while rejecting the aforementioned petition held that the defendant-

appellants  cannot  be  allowed  to  substitute  their  earlier  written  

statement filed in the suit whereunder there was an  admission  of the  

claim of  the plaintiff-Society   

(respondent herein).  Similarly in the revision filed by the defendants,   

the High Court considered all the decisions referred by the defendants  

on the issue as to whether the defendants can withdraw the admission  

made in the written statement and finally came to the conclusion that  

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the  defendant-appellants  cannot  be  allowed  to  resile  from  the  

admission made in the written statement by taking recourse to Order  

VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written  

statement.  In the aforesaid premises, filing of a fresh petition by the  

defendants under Order VI Rule 17 CPC  after about 13 years when the  

hearing of the suit had already commenced and some of the witnesses  

were  examined,  is  wholly  misconceived.   The  High  Court   in  the  

impugned order has rightly held that filing of subsequent application  

for the same relief is an abuse of the process of the court.   As noticed  

above, the relief sought for by the defendants in a subsequent petition  

under Order VI Rule 17 CPC was elaborately  dealt  with on the two  

earlier petitions filed by the defendant-appellants under Order VI Rule  

16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition  

filed by the defendants labelling the petition under Order VI Rule 17  

CPC is wholly misconceived and was not entertainable.

25. After giving our full consideration on the matter, we do not  

find any error in the impugned order passed by the High Court. Hence,  

these appeals have no merit and are accordingly dismissed.  No order  

as to costs.

…………………………………….J. (P. Sathasivam )

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……………………………………J. (M.Y. Eqbal)  

New Delhi, April 18, 2013.

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