Honble SHARMA, J.–Instant revision impugns the order dated December 6, 1996 of the learned Civil Judge (Junior Division) Ladnu, whereby the application of the plaintiff petitioner (for short the plaintiff) moved under Order 6, Rule 17 CPC seeking amendment of the plaint was dismissed.

(2). Brief resume of the facts is that the plaintiff submitted an application in the trial Court under Order 6, Rule 17 CPC to the effect that he does not want to press paras No.6 and 7 ka, kha, ga, gha, da, cha, and chha and wants to amend para No.7 Gha. The defendant 1 to 5 did not file reply to the application. The defendant No.6 however, submitted reply to the application by raising objection that the plain- tiff was bound by his admission made in the plaint and if the amendment is allowed then it would prejudice the case of the defendant, as the original shape of the plaint shall be changed.

(3). The learned trial court dismissed the application vide the impugned order placing reliance on Akshaya Restaurant vs. P. Anjunappa (1). Learned counsel Shri K.N. Joshi, submitted that admissions can be explained and even inconsistent plea could be taken in the pleadings.

(4). On the other hand, Mr. K.C. Samadariya and Manish Shishodia, learned counsel for the defendants supported the impugned order and placed reliance on Heeralal vs. Kalyan Mal & Ors. (2).

(5). I have given my anxious consideration to the rival contentions and carefully perused the impugned order and the case law cited before me. In Akshaya Restaurant vs. P. Anjunnappa & Anr. (supra) their Lordships of the Supreme Court propounded thus-

``It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings.

(6). But in Heeralal vs. Kalyan Mal (supra), Akshaya Restaurant vs. P. Anjunappa (supra) was discussed and distinguished and propounded thus-

``Consequently, it must be held that when the amendment sought the written statement was of such a nature as to displace the plaintiffs case it could not be allowed as ruled by a three member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was perincuriam being rendered without being given an opportunity to consider the binding decision of a three member Bench of this Court taking a diametrically opposite view.

(7). Thus in Heeralal vs. Kalyan Mals case (supra), the case of Akshaya Restaurant vs. P. Anjunappa & Anr. (supra) was declared per incuriam by their Lordships of the Supreme Court, in view of the decision of Bench of three Honble Judges of the Supreme Court in the case of Modi Spinning & Weaving Mills Co. Ltd. & Anr. vs. Ladha Ram & Co. (3). In that case their Lordships of the Supreme Court had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an in- consistent plea which would displace the plaintiff completely from the admission made by the defendants in the written statement cannot be allowed.

(8). In Panchdeo Narain Srivastava vs. Km. Jyoti Sahay & Anr. (4), the plaintiff was held entitled to amend his plaint by submitting that though earlier he stated that the defendant was uterine brother, the plaintiff by amendment in his plaint could submit that the defendant was his brother and the word `uterine could be dropped. Even in that case the main case put forward by the plaintiff did not get changed as the plaintiff wanted to submit that the defendant was his brother. Whether he was uterine brother or real brother was a question of decree and depended on the nature of evidence that may be led before the Court. Therefore the ratio propounded in the case of Panchdeo Narain Srivastava vs. Km. Jyoti Sahay & anr. (supra) is not ap

Click Here to Read the rest of this document