Hon’ble Krishna Murari, J.—Heard Sri K.Ajit, learned counsel for the petitioner and Sri T.A. Khan for the respondent.

2. Undisputed facts giving rise to the dispute are as under :

Plaintiff-respondent No. 1 filed a suit for partition of the ancestral property claiming himself to be shareholder to the extent of half share. The suit was contested by the petitioner by filing written statement on the ground inter alia that their father during his life time has divided the property under a mutual settlement and the plaintiff-respondent has no concern with the suit property as they were self-acquired properties. Trial Court vide judgement and order dated 31.10.2007 passed a preliminary decree with the finding that the plaintiff-respondent No. 1 is entitled to half share in the suit property. The petitioner went up in appeal. During the pendency of the appeal an application under Order VI Rule 17 seeking amendment in the written statement as well as an application under Order 41 Rule 27 to bring on record additional evidence was moved. Lower appellate Court vide order dated 22.1.2010 rejected the application under Order VI Rule 17.

3. A perusal of the written statement filed by the defendant-petitioner goes to show that in para-6 it was admitted that their father had divided the property during his life time and in para-7 it was stated that the parties are in possession over their respective shares under the mutual settlement and he has constructed three shops over the share given to him out of his own fund. In para 14 of the written statement it was stated that three shops were constructed in 1998 on the land which was not ancestral but was self acquired. However, by proposed amendment the defendant-petitioner wanted to bring on fact that all the said shops were constructed on the land which was not ancestral. Appellate Court finding that facts sought to be brought on record by the proposed amendment amounts to withdrawal of the admission made in the written statement filed during trial, which is not permissible.

4. It has been urged by learned counsel for the petitioner that admission made in written statement can always be withdrawn or explained away by the defendant and even inconsistent plea can be taken in the pleadings. Reliance in support of the contention has been placed on the judgement of the Hon’ble Apex Court in the case of Panchdeo Narain Srivastava v. Jyoti Sahay, 1984 (Supp) SCC 594 and Akshaya Restaurant v. P. Anjanappa and another, 1995 (3) AWC 1872 (SC).

5. The aforesaid two Judges’ judgement relied upon by learned counsel for the petitioner did not notice three Judges’ judgement in the case of Modi Spinning and Weaving Mills Co. Ltd. and another v. Ladha Ram and Co., (1976) 4 SCC 320, wherein it has been held that "it is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court".

6. The case of Akshaya Restaurant (Supra) has been held per incuriam by the Hon’ble Apex Court in the case of Heeralal v. Kalyan Mal and others, (1998) 1 SCC 278. In a latest decision the Hon’ble Apex Court in the case of Gautam Swarup v. Leela Jetly and others, 2008(3) AWC 2844 (SC), after considering the entire case laws on the subject has observed as under :

“What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character ther