IMPORTANT POINT
Once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice.

Headnote:Civil Procedure Code, 1908-Order 6, Rule 17 Amendment of written statement-Written statement containing an admission in favour of plaintiff-By amendment such admission of defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing case of plaintiff and which would cause him irretrievable prejudice-Suit for partition of immovable properties-Admission made by defendants that 7 properties out of 10 were joint family properties-Plaintiff filed application for appointment of receiver regarding admitted items of properties-Defendants application for amendment after 18 months, withdrawing admission made in written statement-Rightly rejected-However, order regarding a part of application for amending written statement qua Schedule-B properties, which was allowed by High Court sustained. (Constitution of India-Article 136).
       Held, the order passed by the High Court under Section 115, CPC, allowing withdrawal of earlier admissions of defendant Nos. 1 and 2 in their original written statement about 5 out of 7 items of Schedule-A properties cannot be sustained. The reason is obvious. So far as Schedule-A properties were concerned, a clear admission was made by defendant Nos. 1 and 2 in their joint written statement in 1993 that 7 properties out of 10 were joint family properties wherein the plaintiff had 1/3rd share and they had 2/3rd undivided share. Once such a stand was taken, naturally it must be held that there was no contest between the parties regarding 7 items of suit properties in Schedule-A. The learned Trial Judge, therefore, was perfectly justified in framing Issue No. 2 concerning only remaining three items for which there was dispute between the parties. In such a situation under Order XV Rule 1 of CPC the plaintiff even would have been justified in requesting the court to pass a preliminary decree forthwith qua these 7 properties. The said provision lays down that, where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgment . Even that apart, the defendant-respondents did not think it fit to move any amendment application for getting out of such admission till the plaintiff moved an application for appointment of receiver regarding admitted items of properties. It is only thereafter that the application for amendment was moved. Learned Trial Judge was right when he observed that even the grounds made out in the application were not justified. Consequently, there is no question of taking inconsistent stand which would not have affected prejudicially the plaintiff as wrongly assumed by the High Court. (Para 6)
       Further held that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. (Para 7A)
       Consequently held, no case was made out by the respondents, contesting defendants, for amending the written statement and thus attempting to go behind their admission regarding 5 out of 7 remaining items out of 10 listed properties in Schedule-A of the plaint. However, so far as Schedule-B properties are concerned, from the very inception the defendants case qua those properties was that plaintiff had no interest therein. By proposed amendment they wanted to introduce an event with reference to those very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely or prejudicially affected the case of the plaintiff or displaced any admission on their part qua Schedule-B properties which might have resulted into any legal right in favour of the plaintiff. Therefore, so far as Schedule-B properties were concerned, the amendment could not be found fault with. Hence exercising the powers under Article 136 of the Constitution of India we would not be inclined to interfere with that part of the decision of the High Court allowing the amendment in the written statement, even though strictly speaking High Court could not have interfered with even this part of the order under Section 115, CPC. (Para 10)

JUDGMENT

S.B. Majmudar, J.-Leave granted.

2. Heard learned counsel for the appellant as well as learned advocate for respondent Nos. 1 and 2, who are original defendant Nos. 1 and 2 and are the only contesting parties in this appeal. The appeal was taken up for final disposal forthwith by their consent.

3. Appellant-plaintiff had filed a civil suit for partition of 10 items of immovable properties mentioned is Schedule-A of the plaint and also for partition of other properties listed in Schedule-B of the plaint. The suit was filed in 1993 in the Court of District Judge, Bundi for partition of the suit properties mentioned in diverse schedules annexed to the plaint. The contesting respondent Nos. 1 and 2, who are defendant Nos. 1 and 2 in the suit, being real brothers of the plaintiff filed a joint written statement on 1st October 1993 in the trial Court. In the written statement a definite stand was taken by the contesting defendants that out of the listed properties in Schedule-A only three properties at items 4, 9, and 10 were exclusively belonging to the contesting defendants and were not joint family properties of the plaintiff and defendant Nos. 1 and 2. Meaning thereby that the other seven properties listed in Schedule-A were admitted to be joint family properties. Not only that but in para 11 of the written statement it was submitted that the plaintiff is only entitled for partition regarding the properties of Schedule-A except items 4, 9 and 10 and all the properties mentioned in Schedule-B. They also stated in the said para 11 of the written statement that so far as admitted properties were concerned, the plaintiff was entitled to 1/3rd share and remaining 2/3rd share belonged to defendant Nos. 1 and 2. It appears that thereafter the suit remained pending for trial for number of years. On the basis of the aforesaid stand taken by the contesting parties in the written statement, issues were framed by the trial Court. Issue No. 2, amongst others, read as under :

"Whether the property mentioned in Item No. 4, 9 and 10 of Schedule `Aa attached with the Plaint is the property of Hindu Undivided Family?"

4. Obviously this issue was framed in the light of the admission of the contesting defendants in the written statement that rest of the items listed in Schedule-A were joint family properties wherein the plaintiff had a share along with the defendants.

5. In the light of the aforesaid admitted position between the parties qua these properties the plaintiff moved an application for appointment of a receiver in connection with 7 admitted properties in Schedule-A. It was at that stage and that too after a passage of about 18 months from the moving of such application for appointment of receiver by the appellant that defendant No. 1 came forward with an amendment application to amend his written statement. In the amendment application it was submitted that because of incomplete information supplied by him to his counsel the written statement came to contain the so-called admissions regarding 5 out of 7 items of the properties in Schedule-A and that he had suffered a heart attack in 1989 and therefore when the written statement was moved in 1993 this error crept in. He also wanted to insert a further averment in the written statement regarding Schedule-B properties that they had ceased to remain in possession of defendant No. 1 and were in possession of trespassers. Learned Trial Judge took the view that the application for amendment was not a bona fide one and it was moved only with a view to protract the proceedings as the suit was at the stage of trial by then. Learned Trial Judge was not inclined to accept the reasons put forward for moving such an amendment application at such a late stage and that too for getting out of the admissions made by defendant Nos. 1 and 2 in connection with the relevant suit properties. The result was that the amendment application was dismissed. The first defendant carried the matter in revision und

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1997 Supreme(SC) 1485

Cases Referred (2)