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High Court Of Delhi
MISHA VADERA - Appellant
Versus
RAVI KUMAR - Respondent
Decided On : 02/29/1996
Held:
"There is no absolute bar against an amendment seeking to withdraw even an admission. An amendment of such a nature if sought for would raise a question touching the discretion of the Court but not its jurisdiction. "(p-15) "Admissions are not conclusive proof of the matters contained therein. They may be shown to be untrue, or to have been made under a mistake of law or fact, or to have been uttered in ignorance, levity or an abnormal condition of mind. The weight of the admission would depend on the circumstances in which it was made. It can be withdrawn unless it may amount to an estoppel and become conclusive. (P.16.3)"
"There is no reason to apply a different yardstick of law to an admission contained in pleadings. "(pr.16.3)
"A prayer for amendment in the written statement is to be dealt with more liberally than a prayer for amendment in the plaint. An effort at pleading an alternate inconsistent case in the plaint may be suicidal to the plaintiff and hence may not be permitted but the defendant may in his written statement take the alternate pleas even if they may be inconsistent to some extent and in appropriate cases. "(pr.17)
"The amendment permitted proposes to raise such relevant and necessary pleas as would bring out the matters in controversy and enable a just decision of the case. No injustice is worked out to plaintiffs. They have full opportunity of meeting out the case set up by defendant including one set up by amendment.(pr.18.1)
( 1 ). This is an appeal under Section 10 of the Delhi High Court Act, 1966 preferred TO by the plaintiffs feeling aggrieved by order dated 9. 11. 95 passed by a learned Single Judge of this Court sitting on the original side whereby an application under Order 6 Rule 17 Civil Procedure Code filed by the defendants seeking amendment in the written statement has been allowed.
( 2 ). The suit property consists of a flat measuring 1106 Sq. ft. on the firs,t floor of a multi-storeyed building known as hansalya situated at 15, Barakhamba Road, New Delhi. Mr. Misha Vadera, the plaintiff No. 1 is Managing Director of Hotel Hans Pvt. Ltd. , the plaintiff No. 2. The defendant No. 1 is admittedly the owner of the suit property. The defendant No. 2 is a real estate agent. The defendant No. 3 is builder of the multi-storeyed building of which the suit property forms a part.
( 3 ). According to the plaintiffs, the defendant No. 1 entered into an agreement to sell the suit property in favour of the plaintiffs on 28. 10. 93. There is no agreement in writing. However, the agreement is sought to be spelled out from the contents of a receipt dated 28. 10. 93 which is reproduced hereunder as the contents would be of some relevance at a later stage of this order :-
"receipt Received the sum of Rs. l,00,000. 00 (Rupees One Lac only) in CASH from Mr. MISHA VADEHRA, HANSALAYA, 15, BARAKHAMBA ROAD, NEW DELHI-1100001 as an advance and part payment towards the sale proceeds of FLAT N0. ______ measuring 1106 sq. ft. on the FIRST FLOOR, HANSALAYA, 15, BARAKHAMBA ROAD, NEW DELHI-110001. The total sale consideration has been settled for Rs. 90,00,000. 00 (Rupees Ninety Lacs only ). Further advance of Rs. 8,00,000. 00 (Rupees Eight lacs only) will be paid within seven days from the signing of this Receipt. THAT the SELLER shall apply for the clearance from COMPETENT AUTHORITY within 10 days from the DATE of the signing of this RECEIPT. After getting the clearance, the Seller shall inform the Purchaser by REGISTERED POST, to get the said flat transferred in his Favour or in the name of his nominee within 60 days from the date of receiving the information after paying the balance consideration of Rs. 81,00,000. 00 (Rupees Eighty Lacs only ). The SELLER undertakes to clear all dues of House Tax upto date of transfer of the said property. This BARGAIN has been finalised by SATISH PANDIT and ASSOCIATES. THEY will be paid 2% of the total sale consideration by the SELLER and PURCHASER respectively as their COMMISSION. DATE : October 28, 1993. RAVI KUMAR
( 4 ). On 16. 12. 93, the plaintiffs filed the present suit alleging breach of agreement on the part of the defendants. Written statement by defendant No. l came to be filed on 22. 9. 94. In between two interlocutory applications filed by the plaintiffs were disposed of. They were respectively under Order 39 Rules 1 and 2 Civil Procedure Code and under Order 40 Rule 1 CPC. Orders on both the applications have been subject matter of appeals preferred TO by the defendant No. l. The appeals have been disposed of. An interim injunction restraining the defendant NO. 1 from alienating and parting with possession over the suit property was granted conditional upon the plaintiffs depositing the balance amount of consideration of Rs. 89 lacs in the Court. The plaintiffs had succeeded in securing an ex-parte order appointing the plaintiff No. l as receiver over the property which was set aside in appeal filed by the defendant No. l. The plaintiff No. l who had succeeded in securing possession over the suit property was directed to restore possession back to the defendant No. l by order in appeal.
( 5 ). On 2. 1. 95 i. e. a little more than a three months after the date of filing of the written statement by defendant No. l, the application seeking amendment in the written statement came to be filed which has been allowed by the learned Single Judge and is the subject matter of this appeal.
( 6 ). The applicat
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