# Mahendra Pratap Singh Revisionist v. Rama Raman & Ors

- **Citation:** (2024) 5 ILRA 1072
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** S.C.C. Revision No. 38 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pratap-singh-revisionist-v-rama-raman-ors-51948
- **Pages:** 7

## Headnote

Law
-
Civil
Procedure
Code,1908 - O. VI R. 17 - Amendment -
Substitution of word 'licence deed' in place
of 'tenant' was sought for in written
St.ment
-
Change
of
counsel
or
typographical error was made ground for
amendment - Permissibility - Admission
made in favour of plaintiff, how far can be
withdrawn - Held, admission made in
favour of plaintiff cannot be withdrawn - It
cannot be withdrawn even on the ground
of typographical error - Change of counsel
cannot be a ground to file amendment
application
bypassing
the
rigorous
conditions of due diligence. (Para 9, 14 and
18)

Revision dismissed. (E-1)

List of Cases cited:

## Text

1072 INDIAN LAW REPORTS ALLAHABAD SERIES
assessment so made is to be treated first
assessment and. Apart that, once the
municipal record of assessment is available,
no oral evidence is required.

26. So far as last issue argued by the
learned
counsel
for
the
revisionistsdefendants about the authority of power of
attorney is concerned, the same is having no
relevance for the reasons that it was not part
of
the written
statement
and being
confronted by the Court this fact could not
be disputed by learned counsel for the
revisionists-defendants.

27. Therefore, under such facts and
circumstances of the case, I found no
infirmity or illegality in both the impugned
judgements and decrees dated 20.01.2020.

28. Revisions lack merit and are
accordingly dismissed.

29. No order as to costs.
----------
(2024) 5 ILRA 1072
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 38 of 2024

Mahendra Pratap Singh ...Revisionist
Versus
Rama Raman & Ors. ...Respondents

Counsel for the Revisionist:
Ashwani Kumar

Counsel for the Respondent:
Girish Kumar Gupta

A.
Tenancy
Law
-
Civil
Procedure
Code,1908 - O. VI R. 17 - Amendment -
Substitution of word 'licence deed' in place
of 'tenant' was sought for in written
St.ment
-
Change
of
counsel
or
typographical error was made ground for
amendment - Permissibility - Admission
made in favour of plaintiff, how far can be
withdrawn - Held, admission made in
favour of plaintiff cannot be withdrawn - It
cannot be withdrawn even on the ground
of typographical error - Change of counsel
cannot be a ground to file amendment
application
bypassing
the
rigorous
conditions of due diligence. (Para 9, 14 and
18)

Revision dismissed. (E-1)

List of Cases cited:

1. Life Insurance Corporation of India Vs Sanjeev
Builders Pvt. Ltd. & anr.; 2022 0 Supreme(SC)
864

2. Ram Niranjan Kajaria & ors.Vs Jugal Kishore
Kajaria; (2015) 10 SCC 203

3. Abdul Ahmad Vs Haq Nawaz Ahmad; 2016(8)
ADJ 176

4. Civil Misc. Writ Petition No. 12067 of 2012;
Rama Nand & ors. Vs Amrit Lal & ors.

5. Panchdeo Narain Srivastava Vs Jyoti Sahay;
1984 Supp SCC 594

6. Hari Shanker and 5 others Vs Bhawati Prasad
Mishra; 2014 (0) Supreme (All) 3127

7. Matters under Article 227 No. 5213 of 2013;
Shri Firoz Uddin & ors. Vs Shri Anwar Uddin

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Ashwini Kumar,
learned counsel for revisionist and Sri
Santosh
Kumar
Kesarwani,
Advocate
holding brief of Sri Girish Kumar Gupta,
learned counsel for opposite parties.

2. Present revision has been filed
seeking following relief:-
5 All. Mahendra Pratap Singh Vs. Rama Raman & Ors.
1073
"It, is therefore most respectfully
prayed that this Hon'ble Court may
graciously be pleased to stay the further
proceeding of S.C.C. Case No. 34 of 2013
(Rama Raman vs. Mahendra Pratap Singh)
pending before Additional District Judge,
Court No. 14/Special Judge Gangster Act,
Varanasi."

3. earned counsel for petitioner
submitted that respondents have filed S.C.C.
Case No. 34 of 2013 in which revisionist has
filed written statement on 05.02.2014
admitting the tenancy. After change of
counsel, it was found that documents so
annexed alongwith written statement is
having a 'license deed', but due to
typographical error, it is mentioned as
'tenant'. He next submitted that after change
of counsel, amendment application dated
23.03.2022 has been moved under Order VI
Rule 17 of CPC for substitution of word,
'licensee' in place of word, 'tenant' which
was rejected on the ground that first of all
any admission made in written statement
cannot be withdrawn. Secondly; change of
counsel cannot be a ground to allow
amendment application at a very belated
stage. Further, condition of due diligence
has also not been satisfied. He firmly
submitted that Apex Court has categorically
held that a liberal view is required to be
taken
while
deciding
amendment
application. In support of his contention, he
has placed reliance upon the judgment of
Apex Court in the matter of Life Insurance
Corporation of India vs. Sanjeev Builders
Private Limited and another; 2022 0
Supreme(SC) 864.

4. Sri Santosh Kumar Kesarwani,
Advocate holding brief of Sri Girish
Kumar
Gupta,
learned
counsel
for
opposite parties has vehemently opposed
the submissions of learned counsel for
revisionist and submitted that law is very
well settled on this point that once any
admission is given in written statement,
same cannot be withdrawn. The very
similar issue was before Apex Court in the
matter of Ram Niranjan Kajaria and
others vs. Jugal Kishore Kajaria; (2015)
10 Supreme Court Cases 203 and others
in which Apex Court had clearly held that
categorical
admission
made
in
the
pleadings cannot be permitted to be
withdrawn
by
way
of
amendment
application. He further submitted that
even in case of typographical error in
written statement, admission cannot be
withdrawn. In support of his contention,
he has placed reliance upon the judgment
of this Court in the matter of Abdul
Ahmad vs. Haq Nawaz Ahmad; 2016(8)
ADJ 176. He also pointed out that so far
as change of counsel is concerned, that can
also not be a ground at a very belated
stage. In support of his contention, he has
placed reliance upon the judgment of this
Court passed in Rama Nand and Ors. vs.
Amrit Lal and Ors. (Civil Misc. Writ
Petition No. 12067 of 2012).

5.
I
have
considered
rival
submissions advanced by counsels for
parties and perused the records as well as
judgments cited above.

6. Facts of the case about the date
of filing of suit, written statement and
amendment application are not disputed.

7. Issue before the Court is as to
whether admission made in written
submissions may be withdrawn due to
typographical error pointed by a new
counsel i.e. due to change of counsel.

8. Learned counsel for petitioner
has placed reliance basically upon paragraph
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
nos. 25, 26 & 70 of judgment of Life
Insurance Corporation (Supra), which is
being quoted below:-

"25. The principles applicable to the
amendments of the plaint are equally
applicable to the amendments of the written
statements. The courts are more generous in
allowing the amendment of the written
statement as question of prejudice is less
likely to operate in that event. The defendant
has a right to take alternative plea in defense
which, however, is subject to an exception
that by the proposed amendment other side
should not be subjected to injustice and that
any admission made in favor of the plaintiff
is not withdrawn. All amendments of the
pleadings should be allowed which are
necessary for determination of the real
controversies in the suit provided the proposed
amendment does not alter or substitute a new
cause of action on the basis of which the
original lis was raised or defense taken.
Inconsistent and contradictory allegations in
negation to the admitted position of facts or
mutually destructive allegations of facts
should not be allowed to be incorporated by
means of amendment to the pleadings. The
proposed amendment should not cause such
prejudice to the other side which cannot be
compensated by costs. No amendment should
be allowed which amounts to or relates in
defeating a legal right accruing to the opposite
party on account of lapse of time. The delay in
filing the application for amendment of the
pleadings should be properly compensated by
costs and error or mistake which, if not
fraudulent, should not be made a ground for
rejecting the application for amendment of
plaint or written statement. (See South
Konkan Distilleries & Anr. v. Prabhakar
Gajanan Naik & Ors., (2008) 14 SCC 632)
26. But undoubtedly, every case and
every application for amendment has to be
tested
in
the
applicable
facts
and
circumstances of the case. As the proposed
amendment of the pleadings amounts to
only a different or an additional approach to
the same facts, this Court has repeatedly laid
down the principle that such an amendment
would be allowed even after the expiry of
statutory period of limitation.

70. Our final conclusions may be
summed up thus:
(i) Order II Rule 2 CPC operates as
a bar against a subsequent suit if the
requisite conditions for application thereof
are satisfied and the field of amendment of
pleadings falls far beyond its purview. The
plea of amendment being barred under
Order II Rule 2 CPC is, thus, misconceived
and hence negatived.
(ii) All amendments are to be
allowed
which
are
necessary
for
determining the real question in controversy
provided it does not cause injustice or
prejudice to the other side. This is
mandatory, as is apparent from the use of the
word "shall", in the latter part of Order VI
Rule 17 of the CPC.

(III) The prayer for amendment is to
be allowed;

(i) if the amendment is required for
effective and proper adjudication of the
controversy between the parties
(ii)
to
avoid
multiplicity
of
proceedings, provided
(a) the amendment does not result in
injustice to the other side.
(b) by the amendment, the parties
seeking amendment does not seek to
withdraw any clear admission made by the
party which confers a right on the other side.
(c) the amendment does not raise a
time barred claim, resulting in divesting of
the other side of a valuable accrued right (in
certain situations).
5 All. Mahendra Pratap Singh Vs. Rama Raman & Ors.
1075
(IV) A prayer for amendment is
generally required to be allowed unless:
(i) by the amendment, a time barred
claim is sought to be introduced, in which
case the fact that the claim would be time
barred becomes a relevant factor for
consideration.
(ii) the amendment changes the
nature of the suit.
(iii) the prayer for amendment is
malafide.
(iv) by the amendment, the other
side loses a valid defence.
(V) In dealing with a prayer for
amendment of pleadings, the court should
avoid a hypertechnical approach, and is
ordinarily required to be liberal especially
where
the
opposite
party
can
be
compensated by costs.
(VI) Where the amendment would
enable the court to pin-pointedly consider
the dispute and would aid in rendering a
more satisfactory decision, the prayer for
amendment should be allowed.
(VII) Where the amendment merely
sought to introduce an additional or a new
approach without introducing a time barred
cause of action, the amendment is liable to
be allowed even after expiry of limitation.
(VIII)
Amendment
may
be
justifiably allowed where it is intended to
rectify the absence of material particulars in
the plaint.
(IX)
Delay
in
applying
for
amendment alone is not a ground to disallow
the prayer. Where the aspect of delay is
arguable, the prayer for amendment could be
allowed and the issue of limitation framed
separately for decision.
(X) Where the amendment changes
the nature of the suit or the cause of action,
so as to set up an entirely new case, foreign
to the case set up in the plaint, the
amendment must be disallowed. Where,
however, the amendment sought is only with
respect to the relief in the plaint, and is
predicated on facts which are already
pleaded in the plaint, ordinarily the
amendment is required to be allowed.
(XI) Where the amendment is
sought before commencement of trial, the
court is required to be liberal in its
approach. The court is required to bear in
mind the fact that the opposite party would
have a chance to meet the case set up in
amendment.
As
such,
where
the
amendment does not result in irreparable
prejudice to the opposite party, or divest
the opposite party of an advantage which
it had secured as a result of an admission
by the party seeking amendment, the
amendment is required to be allowed.
Equally,
where
the
amendment
is
necessary for the court to effectively
adjudicate
on
the
main
issues
in
controversy between the parties, the
amendment should be allowed. (See Vijay
Gupta v. Gagninder Kr. Gandhi & Ors.,
2022 SCC OnLine Del 1897)"

9. From the perusal of afore-quoted
judgment, it is clear that in the said
judgment, Apex Court has clearly said that
admission made in favour of plaintiff cannot
be withdrawn, therefore, judgment is not in
favour of petitioner rather against him.

10.

Learned
counsel
for
respondents has also placed reliance upon
the judgment of Ram Niranjan Kajaria
(Supra). Relevant paragraph no. 23 of the
said judgment is quoted below:-

"23. We agree with the position in
Nagindas Ramdas and as endorsed in
Gautam Sarup that a categorical admission
made in the pleadings cannot be permitted to
be withdrawn by way of an amendment. To
that extent, the proposition of law that even
an admission can be withdrawn, as held in
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
Panchdeo Narain Srivastava, does not
reflect the correct legal position and it is
overruled."

11. Apex Court has expressed view
that categorical expression made in pleading
cannot be permitted to be withdrawn and
overruled the judgment of Panchdeo
Narain Srivastava v. Jyoti Sahay; 1984
Supp SCC 594, in which a contrary view is
taken.

12. Therefore, in the light of facts
of the case as well as law laid down by the
Courts, this Court is also of the firm view
that once an admission is made in pleadings,
same cannot be withdrawn by way of
amendment application.

13. So far as typographical error is
concerned, learned counsel for respondent
has placed reliance upon the judgment of
this Court in the matter of Abdul Ahmad
(Supra). Relevant paragraph nos. 15 & 20
are quoted below:-

"15. Having perused the above
noted material on record, this Court finds
that there is clear admission of the petitioner
with
regard
to
the
landlord-tenant
relationship between him and the plaintiff.
He has made categorical statement in this
regard in paragraph no.9 of the written
statement.
Though
the
admission
in
paragraph no.9 of the written statement has
not been withdrawn as the petitioner did not
seek any such prayer in the amendment
application, however, the averments in
paragraph no.15-A which he sought to add
in the written statement shows that he wants
to plead that there was no landlord-tenant
relationship between him and the plaintiff
and, therefore, suit at the instance of the
plaintiff could not be maintained. This
amendment has been sought with further
assertion that there was a typographical
mistake in the written statement for
correction of which, the amendments are
necessary.
20. The judgements relied upon by
learned counsel for the petitioner are
distinguishable in the fact of this cases in
asmuch as, in both the cases namely Sushil
Kumar Jain (supra) and Ushal Bala Saheb
Swami (supra) it is held by the Apex Court
that the amendment in the written statement
was not for withdrawal of admission rather
keeping the amendment intact something
more was sought to be added. The
contradiction and the confusion in the
written statement was sought to be
clarified. "

14. From the perusal of same, it is
clear that any admission given in written
statement cannot be withdrawn on the
ground of typographical error.

15. Another issue taken by the
revisionist is about change of counsel. This
issue was very well considered by this Court
in the matter of Hari Shanker and 5 others
vs. Bhawati Prasad Mishra; reported in
2014 (0) Supreme (All) 3127 and Shri Firoz
Uddin and 4 others vs. Shri Anwar Uddin
(Matters under Article 227 No. 5213 of
2013). Relevant paragraph of the judgment
passed in Hari Shanker (supra) is quoted
hereinbelow:-

"14. Supreme Court again in J.
Samuel v. Gattu Mahesh, (2012) 2 SCC 300,
held that due diligence is the idea that
reasonable investigation is necessary before
certain kinds of relief are requested. Duly
diligent efforts are a requirement for a party
seeking to use the adjudicatory mechanism
to attain an anticipated relief. An advocate
representing someone must engage in due
diligence
to
determine
that
the
5 All. Mahendra Pratap Singh Vs. Rama Raman & Ors.
1077
representations made are factually accurate
and sufficient. The term "due diligence" is
specifically used in the Code so as to
provide a test for determining whether to
exercise the discretion in situations of
requested
amendment
after
the
commencement of trial. A party requesting a
relief stemming out of a claim is required to
exercise due diligence and it is a
requirement which cannot be dispensed
with. The term "due diligence" determines
the
scope
of
a
party's
constructive
knowledge, claim and is very critical to the
outcome of the suit. In the given facts, there
is a clear lack of "due diligen not search out
the fact, which is to be amended in written
statement. Therefore, the condition of due
diligence could not be satisfied. Law is very
ce" and the mistake committed certainly
does not come within the preview of a
typographical error. Similar view was taken
in Vidyabai Vs. Padma Latha, (2009) 2 SCC
409, Sushil Kumar Jain Vs. Manoj Kumar,
(2009) 14 SCC 38 and Abdul Rehman Vs.
Mohd. Ruldu, (2012) 11 SCC 341.
15. The written statement was drafted
by an advocate after reading the plaint. After
legal advice, it cannot be said that in exercise
of "due diligence" the fact sought to be
brought in the pleading by way of amendment
was not in the knowledge of the defendant. A
distinction has to be drawn between 'due
diligence' and 'negligence'. The case of the
defendants falls in the category of 'negligence'
and not 'due diligence'. Trial Court rightly
rejected the amendment application, as
Proviso to Order VI Rule 17 C.P.C., now
castes a rider on the power of the Court in
allowing amendment application."

16. Again, similar issue was
considered by this Court in the matter of
Shri
Firoz
Uddin
(supra).
Relevant
paragraph of the said judgment is quoted
hereinbelow:-
"20. So far as present case is
concerned, there is no dispute on the point
that except the engagement of new counsel,
nothing has been stated in amendment
application even after sincere efforts, they
could not search out the fact, which is to be
amended in written statement. Therefore,
the condition of due diligence could not be
satisfied. Law is very much settled that
change of counsel cannot be a ground for
filing
amendment.
Therefore,
no
interference is required in the impugned
order dated 11.04.2023."

17. This issue was also considered
by this Court in the matter of Rama Nand
(Supra), in which Court has held that
change of counsel cannot be a ground to file
amendment application. Relevant paragraph
of the said judgment is quoted below:-

"Having heard Sri Shiv Nath Singh
the facts of this case leaves no room for
doubt, that the petitioners who are the
defendants were duly represented by a
lawyer for the past several years, who
consciously made an endorsement on
30.10.2007 that he does not want to file any
additional written statement. The evidence
was led thereafter and the witnesses were
cross-examined. It is after some new lawyer
who was engaged at the time of hearing that
dawned on the petitioners that a mistake has
been committed by not filing an additional
written statement. The mistake of the lawyer
of the petitioners as alleged, in my opinion,
is not a mistake at all. It was a conscious
endorsement by the lawyer not to file an
additional written statement. Apart from
this, the evidence with regard to the plea
raised in the amended plaint has been
adduced by the defendants. Thus, they
cannot plead either mistake on behalf of the
lawyer or on their behalf also. The
petitioners cannot be permitted to raise a
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
plea that their lawyer on a wrong advise
made the endorsement. If this is condoned,
then
in
every
case
a
litigant
will
unscrupulously come forward with this plea
and get the case reopened on one pretext or
the other. The subsequent engagement of a
counsel who has a better understanding of
law cannot be a ground to plead that the
earlier
counsel
was
incompetent,
particularly,
in
this
case
where
an
endorsement in writing has been made by
the lawyer that he does not wish to file any
additional written statement. "

18. In the light of law laid down by
the Courts, change of counsel cannot be a
ground to file amendment application
bypassing the rigorous conditions of due
diligence. In fact, to meet out any mistake,
no advantage can be given to litigant due to
change of counsel.

19. In present case, facts are
undisputed that due to typographical error as
well as change of counsel, amendment
application under Order VI Rule 17 of CPC
has been filed to withdraw the admission
earlier made in written submissions, which
cannot be permitted in the light of law laid
down by the Courts from time to time,
therefore, I found no illegal or infirmity in
the impugned order.

20. Revision lacks merit, hence
dismissed.

21. No order as to costs.
----------
(2024) 5 ILRA 1078
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.
S.C.C. Revision no. 76 of 2024

P.N.B Earlier Oriental Bank of Commerce
 ...Revisionist
Versus
Sanjeevani Shiksha Samiti ...Respondent

Counsel for the Revisionist:
Saurabh Kumar Pandey, Sr. Advocate

Counsel for the Respondent:
Utkarsha Birla

A. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021 - Tenancy was
terminated by notice u/s 106 of Transfer of
Property Act Act, 1872 - Effect - How far
Act of 2021 is applicable to the suit filed in
2008 - Held, suit was filed in the year 2008
and on that date, the Act of 2021 was not
in existence, therefore, any provision of Act
would not be applicable. (Para 8)

B. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021 - Mesne
profit, determination thereof - No mesne
profit beyond 7% was claimed under the
Act 2021 - Permissibility - By service of
notice u/s 106 of Transfer of Property
Act, 1882, tenancy was terminated -
Effect - Held, in light of notice u/s 106 of
Transfer of Property Act, 1882, tenancy is
to be terminated, the status of tenant
would be trespasser and he cannot take
any benefit or advantage of any provision
of Act, 2021 - Mesne profit shall be
determined based upon market rate
prevailing in the area. Provisions of Rent
Control Act would not be applicable.
(Para 10, 12 and 15)

Revision dismissed. (E-1)

List of Cases cited:

1. St. of Maharashtra & anr. Vs Super Max
International Pvt. Ltd. & ors.; (2009) 9 SCC
772

2. Writ A No. 2853 of 2024; Smt. Anguri Devi &
ors. Vs Smt. Sampatti Devi & ors. decided on
26.2.2024