The central legal point established in the judgment is that a vital admission made in pleadings cannot be withdrawn to cause prejudice to the other party, and the principles of amendment of pleadings must be applied judiciously.

JUDGMENT :

1. By this petition, petitioner (Orig. defendant no.2) has challenged the order dated 17.08.2022 passed by Jt. Civil Judge Junior Division, Newasa below Exh.18 in Regular Civil Suit No.969 of 2017 allowing application filed by plaintiff (respondent no.1 herein) for amendment of the plaint.

2. The suit is filed by plaintiff seeking partition of the suit property and other related reliefs. In the plaint, the averments were made to the effect that plaintiff is in possession of the suit property. Defendant no.2 filed written-statement denying the contentions of plaintiff about possession and claimed that defendant no.2 is in possession of the suit property. Before commencement of the trial, the application for amendment was moved to delete all the averments relating to plaintiff’s possession of the suit property. Prayer relating to mesne profit during pendency of the suit was also sought to be added. By order dated 17.08.2022, the amendment has been allowed. Petitioner, who is defendant no.2 in the suit, is aggrieved by the order allowing amendment and has challenged the same in the present petition.

3. Mr. Pathan, the learned counsel for petitioner submits that the averments which are sought to be deleted by way of amendment constituted important admissions in favour of defendant no.2 and that therefore plaintiff cannot be permitted to withdraw such admissions. He further submits that the said averments amount to admissions in the light of Section 58 of the Indian Evidence Act and by deleting such averments, not only prejudice would be caused to defendant no.2 but the nature of the suit is also sought to be altered. Mr. Pathan further submits that plaintiff initially contended that she is in possession of the suit property and after realizing the lacuna in those contentions, she now wants to withdraw those averments thereby prejudicing the defence of defendant no.2.

4. In support of his contentions, Mr. Pathan relies upon the judgment of the Apex Court in Ram Niranjan Kajaria vs. Sheo Prakash Kajaria & Ors., 2015 (6) ALL MR 416 as well as the judgment of this Court in Deubai Tukaram Pakhare and Others vs. Muktabai Tukaram Pakhare and others, 2000 (1) Mh.L.J. 511.

5. I have heard the learned counsel for petitioner and have perused the records of the case. The suit has been filed by plaintiff seeking partition and possession of 1/4th share in the suit property. In her claim, plaintiff claimed that she not only has undivided share in the suit property, but such share was handed over to her for her enjoyment and she has been possessing the same. She also claimed cultivating crops in the suit property.

6. Defendant no.2 filed written-statement specifically denying the contentions raised by plaintiff about possession and on the contrary made specific averments in para - 23 that he is in possession the entire suit property. The trial in the suit is yet to commence. At that stage, plaintiff filed application dated 15.11.2018 for amendment of the plaint whereby she sought to delete various averments made by her in plaint claiming possession of the suit property. She also desired to add prayer for claiming mesne profit from the defendants during pendency of the suit.

7. On careful perusal of the nature of the suit, pleadings in the plaint and the written-statement, I am of the view that plaintiff initially made assertions to the effect that she is in possession of the suit property. However based on such assertions relating to possession, no specific prayer was sought. In fact, prayer clause ‘A’ of the unamended plaint contains a prayer for possession of 1/4th share in the suit property. Thus there was contradiction in the averments in the plaint claiming possession and prayer clause ‘A’ demanding possession. By way of amendment, plaintiff sought deletion of all the averments wherein she had claimed possession of the suit property. It now appears that plaintiff wants to indirectly admit that the possession of the suit property is wi