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2023 Supreme(Online)(Bom) 24819
BOMBAY HIGH COURT
BHARAT P. DESHPANDE, J
Smt. Vimal Dattaram Shirodkar – Appellant
Versus
Mr. Rajendra Dattaram Shirodkar – Respondent
First Appeal No. 27 of 2021 | Special Civil Suit No. 58/2015/A
For the Appellants/Petitioners: Shri Sudin Usgaonkar
For the Respondents: Shri Joaquim Godinho
Admissions made during cross-examination are sufficient to authorize a court to decree partition without needing to amend pleadings.
Headnote:(A) Civil Procedure Code, 1908 - Order XII Rule 6 - Partition Suit - Suit dismissed by Trial Court for lack of amendment in plaint despite admissions on share - Admission during cross-examination significant for final decree - Discretion to mould relief based on admissions needs to be exercised by the court. (Paras 3, 18, 20)
(B) Co-ownership determination - Prior decision established co-ownership, allowing for partition based on admitted shares - Admission of shares during evidence suffices for judgment without amendment. (Paras 8, 21)
Facts of the case:
The appeal challenges a dismissal of partition suit where plaintiffs claimed 17/18th share, but trial court dismissed for not amending their plaint despite clear admissions of shares by defendants during cross-examination.
Findings of Court:
Trial Court erred in dismissing the suit; admissions made on oath necessitate a partition decree without requiring amendments.
Issues: Whether admissions during cross-examination justify relief without amendment of pleadings?
Ratio Decidendi: Admissions made during proceedings are sufficient for passing judgment; a preliminary decree for partition should have been issued based on admissions of share during evidence.
Result: Appeal allowed; suit for partition decreed.
| Table of Content |
|---|
| 1. dismissal based on failure to amend despite admissions. (Para 3 , 4) |
| 2. arguments regarding the necessity of amending pleadings. (Para 5 , 6) |
| 3. significance of admissions during evidence in determining relief. (Para 8 , 12 , 14 , 20) |
| 4. court's authority to rule on admissions without pleadings amendment. (Para 13 , 19) |
| 5. final decree declared based on admitted shares. (Para 21) |
ORAL JUDGMENT:
1. Admit.
2. Heard Mr. Sudin Usgaonkar, learned Senior Advocate for the appellants and Mr. Joaquim Godinho, learned Counsel for the respondents.
3. This is a First Appeal filed by the original plaintiffs challenging the impugned judgment dated 25/02/2019 in Special Civil Suit No.58/2015/A whereby a suit for partition was dismissed only on the ground that though during evidence shares of the parties are admitted the plaint was not amended to that effect.
4. The learned Senior Counsel Shri Usgaonkar appearing for the appellants strongly contended that co-ownership of the plaintiffs and the defendants was determined in the earlier proceedings filed between the parties in Special Civil Suit No. 195/96/A. The plaintiffs desired to effect partition of the suit property claiming therein that all the plaintiffs are having 17/18th share whereas the defendant is having 1/18th share in the suit property. The defendant No.1 in his written statement and more specifically in paragraph No.3 disputed the contentions of the plaintiffs and claimed that there are only 11 shares out of which defendant is entitled upon 1/11th share. After framing of issues parties led evidence. During cross-examination of the plaintiff, he admitted pleadings of defendant No.1 in paragraph 3 of the written statement thereby admitting the shares of the plaintiffs and the defendants as stated in the written statement. Though the learned Trial Court considered these admission, dismissed the suit only on the ground that the plaintiff failed to amend the pleadings in the plaint.
5. Mr. Usgaonkar placed reliance on the following decisions:
1. S.M. Asif v/s. Virender Kumar Bajaj ,(2015) 9 SCC 287.
2. M/s. Hi-Tech Technologies Pvt. Ltd. V/s. Surinder Mohan Singh Sandhu and another , CR No.4194 of 2013 (O&M).
3. Chander Mohan v/s. Brij Mohan , MANU/PH/0631/1999.
6. Per contra, Mr. Godinho, learned Counsel appearing for the respondents strongly contended that the plaintiff claimed more share in the suit property in the plaint which was denied by defendant No.1 and he has specifically disclosed the shares of the parties who are entitled. He then submitted that issues were framed and the plaintiffs filed an affidavit-in-evidence. However, the plaintiff stuck to pleadings in the plaint claiming 17/18th share in the suit property which was specifically denied by the defendants. Though during cross- examination plaintiff admitted the shares as disclosed in paragraph 3 of the written statement, that itself would not be ground for decreeing the suit as the plaintiffs ought to have amended the pleadings including the prayer clause.
7. The short question which cropped up in the present matter is whether admission on the part of the plaintiffs during cross- examination about the shares of the parties to the suit would suffice to mould the relief.
8. Since the co-ownership of the parties to the proceeding is already decided in the earlier suit bearing Special Suit No.195/96/A, the only prayer in the present proceedings was to partition the suit property as per the shares of the respective parties. In Special Civil Suit No.195/96/A filed by the present defendants claiming the entire suit property, the present plaintiffs filed a counterclaim. After leading evidence, the learned Civil Court dismissed the suit of the present defendants and allowed the counterclaim of the present plaintiffs. It was declared that the plaintiffs and defendants are joint owners of plots No.D1 and D2 and the house/building constructed therein. Thus, the only question which was necessary to determine was in respect
