Amendments seeking to withdraw admissions given in the plaint are not permissible in law and would prejudice the other party.

JUDGMENT

N.B. Suryawanshi, J. - RULE. Rule made returnable forthwith. Heard finally with the consent of the parties.

2. This petition is directed against the order dated 03/05/2014 passed by the 4th Joint Civil Judge, Junior Division, Osmanabad below Exhibit-119 in Regular Civil Suit No. 66/2013, thereby allowing the amendment application filed by the plaintiff.

3. The respondent No. 1/original plaintiff filed Regular Civil Suit No. 66/2013 seeking a declaration that he is the owner of suit property bearing Gut No. 327 Adm. 13 A. 7 Guntha, situated at Osmanabad in Municipal Council area. The suit was resisted by the petitioner and others by filing their written statements. Thereafter, by filing applications Exhibits 20 & 22, the plaintiff sought amendments in the plaint, which was allowed. Accordingly, he has carried out the amendments.

4. The plaintiff, thereafter, by filing application (Exhibit-119), sought amendments by deleting some pleadings and inserting some pleadings. So also the prayer was sought to be inserted. This application was opposed by the petitioner and others. The trial court allowed the said application by imposing cost of Rs. 1200/-. This order is impugned in the present writ petition.

5. Heard the learned advocate for the petitioners, learned advocate for respondent No. 1 and the learned advocate for Respondent Nos. 2 to 9.

6. The learned advocate for the petitioners submits that the impugned order is unseasoned order and admissions given by the plaintiff are sought to be taken away and therefore, the impugned order is unsustainable. In support of his arguments, he relied on Heeralal Vs. Kalyanmal reported in 1998 (1) SCC 278 and M/s. Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons and Ors. reported in AIR 2009 SC (Supp) 2897.

7. The learned advocate representing respondent Nos. 2 to 9 adopted the arguments of the petitioners. In addition, he submitted that earlier also, the plaintiff was permitted to amend his pleadings in view of the orders passed below Exhibits 20 & 22. Now, by the proposed amendment, he is withdrawing his admissions, which should not be permitted.

8. The learned advocate for respondent No. 1, on the other hand, supported the impugned order submitting that there is no withdrawal of admissions and the trial court has rightly allowed the application by observing that nature of suit i.e. suit for permanent injunction and declaration will remain the same and therefore, the proposed amendment will not change the nature of suit. According to him, since the trial has not commenced, the impugned order is justified.

9. In Para-10 of the plaint, the plaintiff has given certain admissions that, 'a nominal partition deed was prepared on 31/10/1981 which was not to be acted upon. The said partition deed is signed by the plaintiff and others'. In Para-11 of the plaint, it is stated that, 'after the execution of the nominal partition deed, the disputed property was in possession of the plaintiff'. In Para-15 of the plaint, it is averred that 'by misusing the nominal partition deed 1981 on the basis of that documents, without knowledge of the plaintiff, name of defendant was entered and by taking disadvantage of the name of the defendant recorded to the disputed property, consent decree was obtained in R.C.S. No. 549/2012'.

10. The defendants in their written statements have accepted the execution of the partition deed and have also further pleaded that on the basis of partition deed, Mahboob Ali executed sale deed of a portion of the disputed land in favour of one Dr. Seema Kulkarni and the plaintiff has signed the said sale deed as a witness.

11. Taking into consideration the pleadings and factual matrix, it is clear that by way of amendment, the plaintiff is withdrawing the admissions given in the plaint, which cannot be permitted in law and facts of the present case. The trial court has erred in coming to the conclusion that the nature of suit does not change and therefore, amendment needs