Pushkar (DR) 15 September 2012
Hi,
In a civil case instituted against me by my brother, while giving the details of the property he mentioned that our father had expired however, our father is still alive. Now after 6 months, they filed an amendment saying that it was an error because they got to know that we were preparing to file application under 340 crpc. Can we contest this. Please suggest how to proceed.
SRIKANTH (junior) 15 September 2012
pl. contest the civil case that is the proper way.
Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 15 September 2012
Such Amendments are not to be allowed as they completely take away an admission already made judicially, and completely change the substratum of the case. In this regard you can rely on the following judgments :-
a) Usha Balashaheb Swami & Ors vs Kiran Appaso Swami & Ors-AIR 2007 SC 1663 - When leave to amend is sought to go back on previous admission – it shall not be allowed - as it may result in a material loss w.r.t merits of the case as he conducted himself vis-à-vis the proceedings in a certain manner owing to the Admission. Inconsistent Pleadings shall not be allowed to be made as are mutually destructive.
Another decision is :-
b) Revajeetu Builders & Developers Vs Narayanaswamy & Sons & Ors (2009) 10 SCC 84. In this case the court held that such amendments should not allowed where they are made belatedly with a mala fide intent just to prolong and protract the proceedings or where it changes the fundamental character of the case.
However since an amendment application is accompanied with an affidavit, perjury has already been done and you can after defeating their amendment application - initiate 340 CrpC.
Feel free to talk !
Bharat Chugh
*Advocate Supreme Court of India
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