Defendants can take inconsistent and alternative pleas in their defense, but they cannot withdraw admissions made in the written statement through amendment, as it would irretrievably prejudice the plaintiff.

Chandramauli Kr.Prasad, J.

1. Defendants Ist set-petitioners, being aggrieved by the order dated 2.6.2005 passed by the Subordinate Judge, VIII, East Champaran at Motihari in Partition Suit No. 86 of 1998 rejecting their prayer for amendment of the written statement, have preferred this revision application.

2. Defendants-Ist set consist of defendant No. 1 to 6. Defendant Nos. 1 and 2 as also defendant Nos. 3 to 6 filed separate written statements. Defendant Nos. 1 and 2 as also defendant Nos. 3 to 6 later on, also filed separate applications for amendment of the written statement.

3. Defendant Nos. 1 and 2 sought amendments of paragraph Nos. 9 to 12 and 14 of the written statement. In paragraph No. 9 of the written statement, these defendants had admitted that the land detailed in the deed of conveyance is a purchased land of plaintiff No. 1, whereas by proposed amendment, they seek to withdraw that and plead that it is not an acquired land of plaintiff No. 1 and, in fact, fell into his share and that of their father in partition and plaintiff is entitled to 1/3 share of that property. Further, admissions made in paragraph Nos. 10 to 12 and 14 are sought to be withdrawn by the proposed amendment. In paragraph Nos. 10 to 12 and 14 of the written statement, these defendants had admitted plaintiffs averments in paragraph Nos. 8,9.11 and 14 of the plaint respectively. By the proposed amendment, they seek to withdraw these pleadings.

4. Amendments sought for by defendant Nos. 3 to 6 are in paragraph Nos. 11 to 13 and 15 of the written statement. In the aforesaid paragraphs, these defendants have admitted the plaintiffs plea in paragraph Nos. 8,9,11 and 14 of the plaint.

5. By the impugned order, both the applications have been rejected on the ground that defendants-Ist set seek to withdraw the admissions made in the written statement, which is not fit to be granted.

6. Defendant Nos. 1 and 2 and 3 to 6 have preferred one revision against the order rejecting separate applications filed by them under Order 6 Rule 17 of the Code of Civil Procedure, hereinafter referred to as the Code, for amendment of the written statement. As these defendants have preferred one civil revision application, rejecting two separate applications, I have proceeded to examine the validity of those orders on the petitioners undertaking that they shall pay another set of Court fee.

7. Mr. Vijay Shankar Shrivastava, learned Counsel appearing on behalf of the petitioners, submits that by way of mendment, inconsistent and alternative plea can be allowed. However, on fact, he is unable to dislodge the conclusion of the Court below that by the proposed amendment, these defendants seek to withdraw the admissions made in their respective written statements. In view of aforesaid, he takes a stand that admission made by a party, can be withdrawn and hence, Court below, while declining to allow the prayer of amendment, failed to exercise the jurisdiction vested in it by law.

8. In view of aforesaid, the point which falls for determination, is as to whether admission made in the written statement, can be withdrawn by its amendment under Order 6 Rule 17 of the Code.

9. Mr. Shrivastava, submits that there is no legal impediment in withdrawing the admission made in the written statement and in support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Panchdeo Narain Srivastava V/s. Km. Jyoti Sahay and Anr. - and my attention has been drawn to the following passage from paragraph No. 3 of the said judgment, which reads as follows:

3.xxx- An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional ju