Case Note & Summary
The litigation arose from execution proceedings in R.A.E. Suit No. 666 of 1989, a suit for possession on the ground of bonafide requirement filed by the respondents (plaintiffs/owners) against the original defendants. The suit was decreed on 12-6-1997, the defendants' appeal was dismissed, and their writ petition was dismissed on 3-4-1980. When the decree was put to execution, the obstructionists (petitioners herein) obstructed. Obstructionist 1 took out Miscellaneous Notice No. 1001/99 in Obstructionist Notice No. 53/1998 seeking amendment of his affidavit in reply to introduce a new defence. The notice was discharged on 29-4-2000 by the trial court, which found that obstructionist 3 wanted to wriggle out of his admission that he came to the premises in 1985 and took them from the defendant, and that the amendment would change the nature of the defence. The obstructionists' Revision Application No. 116 of 2000 before the Small Causes Court was dismissed as not maintainable, with the division bench concurring that the notice was rightly rejected. In the present writ petition, the obstructionists challenged these orders. Obstructionist 3 claimed that during his evidence, he went to his village and discovered old papers showing his father had entered into a leave and licence agreement dated 7/5/1971 with the defendant, contrary to his earlier testimony that he was a sub-tenant of the defendant since 1985. The petitioners argued for a liberal approach to amendments, citing Supreme Court decisions, and contended the amendment was an alternate plea that would prevent multiplicity of proceedings. The respondents maintained that the amendment sought to change the defence and nullify the admission. The High Court examined the evidence of obstructionist 3, wherein he had clearly deposed about a sub-tenancy agreement with the defendant and made no mention of any prior leave and licence agreement by his father. The Court held that the proposed plea was not an alternate one but repugnant to the earlier plea, directly seeking to withdraw an admission. Distinguishing the precedents relied upon, the Court observed that none supported allowing a repugnant amendment that would wash out an admission. The Court emphasized that while a liberal approach is warranted to prevent multiplicity of proceedings, amendments introduced with mala fide intention to frustrate a decree and procrastinate litigation cannot be permitted. The writ petition was dismissed, and the executing court was directed to proceed expeditiously and uninfluenced by the observations made in the judgment.
Headnote
A) Civil Procedure - Amendment of Pleadings - Repugnant Plea and Withdrawal of Admission - Code of Civil Procedure, 1908, Order VI Rule 17 - The obstructionist in execution proceedings sought to amend his affidavit to plead a leave and licence agreement dated 7/5/1971 between his father and the original defendant, while his earlier evidence stated he came to Mumbai in 1985 and took the premises on rent from the defendant. The Court held the proposed amendment was repugnant to the earlier admission and amounted to an attempt to withdraw it; a plea that washes out an admission can never be allowed. The liberal approach to amendments cannot be extended where the amendment is mala fide and aimed at frustrating a decree and procrastinating litigation. The executing court's order rejecting the amendment was upheld. Held that no interference was necessary. (Paras 9-16).
Issue of Consideration
Whether the executing court erred in rejecting the obstructionists' application for amendment of their affidavit in reply, which sought to introduce a defence of protected tenancy based on a leave and licence agreement dated 7/5/1971, contrary to the earlier admission of sub-tenancy from 1985.
Final Decision
Writ petition dismissed. Rule discharged. The executing court was directed to proceed with execution uninfluenced by observations and expeditiously.
Law Points
- amendment of pleadings cannot be allowed if it introduces a repugnant plea
- withdrawal of admission not permissible
- liberal approach to amendments does not extend to mala fide attempts to frustrate decree or procrastinate litigation
