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1990 Supreme(MP) 393
R.C. Lahoti, J.
Ramesh Dutt S/O Bhogiram Sharma
vs
Dev S/O Bhogiram Sharma And Ors.
DECIDED ON : 4 October, 1990
An amendment seeking to withdraw an admission made earlier in the pleadings may be permitted if it does not irreparably prejudice the other side and does not cause injustice to it.
Headnote:
CIVIL PROCEDURE CODE, 1908 - ORDER 6 RULE 17 - AMENDMENT OF PLEADINGS - WITHDRAWAL OF ADMISSION - PRINCIPLES.
Fact of the Case:
The defendant in a suit for partition sought to amend his written statement to plead that the properties in dispute were joint Hindu family properties instead of self-acquired properties as originally admitted. The trial court rejected the amendment.
Finding of the Court:
The court held that the amendment was not permissible as it amounted to setting up a totally inconsistent and different case than what had been pleaded in the original pleadings. The court also noted that the defendant had not explained the circumstances in which the earlier admission was made and how and in what circumstances it became necessary to change the defense.
Issues: Whether the defendant could be permitted to withdraw an admission made earlier in the pleadings.
Ratio Decidendi: The court held that a prayer for amendment seeking to withdraw an admission made earlier in the pleadings does not raise the question of jurisdiction. It will depend on the facts and circumstances of each case whether such amendment can be permitted. Admissions on questions of law can be permitted to be withdrawn liberally but prayer for amendment seeking to withdraw an admission on point of fact must receive a cautious and careful attention of the Court. Admission may be permitted to be withdrawn if prayed for at an early stage of the proceedings, if it does not irreparably prejudice, the other side and does not cause injustice to it. The Court would be chary in entertaining a prayer made at a late stage specially when nothing has been placed on record to explain the circumstances in which the earlier admission was made and is now sought to be withdrawn.
Final Decision: The revision petition was dismissed.
R.C. Lahoti, J.
1. Law as to amendment of pleadings contained in Rule 17 of Order 6 of the Code of Civil Procedure, 1908 has been subject-matter of discussion in umpteen number of cases. The general principles are so well settled by the law laid down by the Apex Court, also illuminated in several decisions of this Court, as hardly need to be reviewed and restated. For principles see - Ganesh Trading Co. v. Moti Ram, AIR 1978 SC 484; Jai Jai Ram Manohar Lal v. National Building Material Supply, AIR 1969 SC 1267; L. J. Leach and Co. Ltd. and Anr. v. Messrs Jardine Skinner and Co., AIR 1957 SC 357 and P. H. Patil v. Kalgonda Shequonda Patil and Ors., AIR 1957 SC 363. Nevertheless, the difficulty faced by subordinate Courts while dealing with an application seeking an amendment resultinng in withdrawal of admission contained in the pleadings can be understood. The present one is such a case.
2. A bare reading of Rule 17 shows that once the Court has formed an opinion that the amendment prayed for is necessary for the purpose of determining the real question in controversy between the parties, it shall be allowed. In other matters, the Court has been conferred with a discretion in permitting amendment, or alteration in pleadings, in such manner and on such terms as may be deemed just by the Court. The discretion so conferred, like all other judicial discretions, has to be exercised judicially, guided by reason and not at whim, caprice or fancy. The overriding consideration is that the procedural laws are handmaid of justice; they are intended to facilitate and not to obstruct the course of substantive justice. In civil litigation costs is a panacea which heals every sore unless the facts and circumstances of a particular case indicate that the indulgence shown by the Court may itself become a source of sores.
3. The plaintiff/non-petitioner No. 1 filed a suit for declaration of title and partition describing the two properties forming subject-matter of suit in para 2 of the plaint. It was averred that the parties were sons, daughters and widow of late Bhogiram Sharma and the properties though self acquired by the deceased, were liable to be partitioned on his death, amongst his heirs. The defendant No. 1 in his written statement stated that not the two alone described by the plaintiff but four other immovable properties and a few movables too were liable to be partitioned between the parties because they were all self-acquired properties of late Bhogiram, having been succeeded to jointly by all the parties consequent to the death of the holder . It was also submitted that the suit as filed by the plaintiff was liable to be dismissed for failure to include in suit all the available properties liable to be partitioned.
4. The suit is of the year 1987. Issues having been framed on the pleadings of the parties, the evidence too commenced. On 23-6-1990, the defendant No. 1/petitioner moved an application seeking an amendment in the written statement whereby it was sought to be pleaded that all the properties set out in written statement (including the two set out in the plaint) were all joint Hindu family properties of the parties as the same were acquired by the deceased with the aid of joint family funds. The plea now sought to be raised through amendment is diametrically opposed to the original plea that the properties were the self-acquired properties of the deceased, a fact practically admitted between the parties at least to the extent of two properties detailed in the plaint.
5. The trial Court rejected the prayer for amendment in the written statement on the ground that the defendant No. 1 could not be permitted to wriggle out of the admission made by him and to set-up a case totally inconsistent with his original plea. The aggrieved defendant No. 1 has come up in revision.
6. It may be stated that in the application not a word has been stated explaining the delay or the circumstances in which admission by the defendant No. 1 was
