The right to withdraw an admission in a written statement is not absolute; sufficient justification and due diligence must be demonstrated to amend post-trial commencement.

JUDGMENT :

(Satyen Vaidya, J.)

By way of instant petition, petitioner has assailed order dated 10.2.2023 (Annexure P-6), passed by learned Civil Judge, Court No. IV, Una, District Una, H.P., in CIS No. 287/2023, whereby, the application for amendment of the written statement of the petitioner has been dismissed.

2. Respondent herein has filed a suit for permanent prohibitory and mandatory injunctions against the petitioner with respect to a passage through land comprised in Khasra No.6 in Mohal Haroli Pratham, Tehsil Haroli, District Una. The respondent has claimed joint ownership in land comprised in Khasra No.6 with petitioner/defendant and others and on such premise has claimed right of passage from the said land to his house.

3. Petitioner/defendant in his written statement has unequivocally admitted respondent to be the joint owner of the suit land. He, however, has claimed separate possession on the basis of mutual understanding between the parties. The right of passage of the respondent through the land comprised in khasra No.6 has also been denied.

4. After framing of issues, petitioner preferred an application for amendment of the written statement inter- alia seeking to withdraw his admission as to joint ownership of respondent/plaintiff. He further sought exclusive ownership over the suit land. The reason assigned for seeking such amendment was that the admission as to joint ownership of the plaintiff on the suit land was made inadvertently and erroneously, as the revenue record was not available and further that the petitioner had been provided wrong legal advice.

5. Respondent contested the application on the ground that the petitioner cannot be allowed to withdraw the admission made in favour of the respondent.

6. Learned trial Court vide impugned order has dismissed the application on two grounds, firstly that the petitioner cannot be allowed to withdraw the admission made in favour of the respondent completely and secondly that the petitioner had failed to show that despite due diligence, he could not seek the amendment before commencement of the trial.

7. I have heard the learned counsel for the petitioner and have also gone through the record. None has put in appearance for the respondent.

8. The petitioner in his application for amendment of written statement has simply mentioned that the admission made by him as to joint ownership of the plaintiff in the suit land was result of inadvertent mistake as he was not in possession of revenue records and had received wrong legal advice. There is no averment in the application as to when and how the petitioner came to know about the alleged mistake and which of the document made him realize the correct factual position. It has also not been stated that when did the petitioner come across such document. In these circumstances, the plea raised by the petitioner could not be considered as a gospel truth.

9. The absence of right of defendant to withdraw admission made in the written statement cannot be considered absolute. In the facts of case in hand, the plaintiff can either be a co-owner or not and there cannot be any other perceivable third situation. In such scenario, petitioner cannot claim himself to be exclusive owner and the joint owner of the suit land simultaneously. It being so, to say that the petitioner could not maintain application to amend the written statement may not be wholly justifiable. The conclusion will depend on the specific facts of the case.

10. The petitioner, as noticed above, did not place before the learned trial Court the factual foundation to prove his assertions or show his bonafide. Even before this Court, no material has been placed to justify the reason for seeking amendment in the written statement. As already noted, there is neither any specific averment as to the time when the petitioner realizes the alleged mistake or the document that made him realize the same.

11. After the amendment of Order 6 Rule 17 of CPC vide Amended Act 22 of 2002,