An amendment of a written statement can be allowed to explain or clarify earlier averments, but not to set up a new case or withdraw categorical admissions, in order to avoid irretrievably prejudicing the opposing party.

Suneet Kumar, J.

Heard Shri Ashutosh Srivastava, learned counsel for the petitioners as well as Shri K. Ajit assisted by Sri Arvind Srivastava, learned counsel for the respondents.

2. The defendant petitioners have approached this Court challenging the order dated 24.02.2009 passed by the Additional District Judge, Court No. 2, Jaunpur in Civil Revision No. 179 of 2007 setting aside the order dated 10.10.2007 passed by the court of first instance allowing the petitioners' application for amendment of the written statement.

3. The plaintiff/respondent Nos. 1 and 2 filed Suit No. 426 of 1987 for permanent injunction restraining the petitioners and other defendant from interfering in the possession and enjoyment of the suit property as shown in the plaint map. The parties are related to each other and suit property was partitioned amongst the ancestors of the parties by mutual consent, the defendants began to interfere in the land that fell in the share of the plaintiffs and hence the suit.

4. The petitioners who were defendant nos. 2 and 3 in the aforesaid suit filed their written statement denying the allegations in the plaint. Subsequently, the written statement was sought to be amended which was contested by the respondent nos. 1 and 2. The Civil Judge (Senior Division) City Jaunpur allowed the amendment with cost. Being aggrieved, the respondent nos. 1 and 2 assailed the order in Civil Revision No. 179 of 2007, the revisional court allowed the revision and set aside the judgment and order of the trial court stating that the proposed amendment was in fact a second written statement and could not be permitted.

5. Submission of learned counsel for the petitioners is that the trial court having jurisdiction, exercised its discretion, allowing the amendment of the written statement and it does not suffer from any illegality or jurisdictional error warranting interference in revision. The revisional court erred in holding that the petitioners could not withdraw the admission made in written statement, whereas, the law is otherwise. The petitioners only tried to explain by pleading in the form of an amendment the averments made in written statement.

6. In support of his submission, learned counsel for the petitioner has relied upon Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another, 1984 (Supp.) SC 594, Usha Balashaheb and others v. Kiran Appaso Swami and others, 2007(5) SCC 602, Sumesh Singh v. Phoolan Devi and others, (2009) 12 SCC 689 and Sushil Kumar Jain v. Manoj Kumar and another, (2009) 14 SCC 38.

7. In rebuttal, Sri K. Ajit, learned counsel for the respondents submits that the amendment is malafide based on the theory of the mother informing the petitioners of the facts, accordingly the amendment was sought to be made, whereas, the petitioner no. 2, Deepak Kumar is a practicing Advocate in Jaunpur, similarly petitioner no. 1, Anand Kumar is an Assistant Teacher in Intermediate College in Jaunpur, hence, it is unimaginable that the petitioners had no knowledge regarding the case prior to the information received from their mother. It is further contended that the parties are descended of one Gopal and partition between the parties and other proforma respondents had already taken place; an earlier suit for partition, with regard to the landed property in Village Katahari of District Jaunpur, was decreed declaring half share of landed property between the petitioners and proforma respondents, the decree was not challenged and had attained finality. Thereafter, Suit No. 383 of 1987 was filed by the answering respondents against the petitioners for partition of groove land which was decreed on 07.01.1984 declaring half share of the petitioner and the answering respondents.

8. The present suit is suit pertaining to the house property which was partitioned between the parties and are enjoying the possession of their respective shares. The judgment and order passed by the revisional court is legal as it was not open for th