PAVITHRAN Vs. NARAYANAN

JUDGEMENT

(1.) THE suit OS No. 803 of 1987 on the file of the Principal Munsiff's Court, Cherthala is one for declaration of title and possession of the plaintiffs over the suit property which is described as 35 cents in Survey No. 241/5 of Kodamthuruth Village. THE first defendant in the suit is the Sakhayogam and the third defendant is the President of the Sakhayogam. A written statement was filed disputing the title and possession of the plaintiffs. THEre is clear admission in the written statement that the defendants are in possession of only 25 cents excluding the 35 cents shown in the plaint schedule.

(2.) THE third defendant filed IA No. 2754 of 1991 under O. 6 R. 17 CPC for amendment of the written statement. A statement was sought to be incorporated in the written statement that the defendant is in possession of 60 cents of property which includes the 35 cents shown in the plaint schedule. THE statement that he obtained possession of 25 cents excluding the 35 cents shown in the plaint schedule is sought to be deleted by the amendment. It is stated in the affidavit filed in support of the application that the mistake in the written statement was committed by the lawyer who drafted the same.

(3.) COUNSEL for the revision petitioner argued that the reliance placed by the court below on the decision referred to above was not justifiable in view of the later decision of the Supreme Court and that of various other High Courts from which it could be understood that the decision referred to above is no longer acceptable as good law. COUNSEL placed reliance on the decision reported in Panchdeo Narain v. Jyothi, AIR 1983 SC 462 in which it has been held that an admission made by a party may be withdrawn or may be explained away and therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The Supreme Court was considering a case where the application for amendment of the plaint was allowed by the trial court for effective adjudication of the dispute which was interfered with by the High Court in revision. The Supreme Court held that such interference by the High Court was not justifiable. It was a case where the plaintiff described himself in the plaint as the son of the uterine brother of one person. Subsequently, he moved an application for amendment of the plaint inter alia seeking deletion of the word 'uterine' form the plaint The trial court granted the amendment sought for but the High Court in revision set aside the order granting amendment In the course of discussion, the Supreme Court stated that procedural law is intended to facilitate and not to obstruct the course of substantive justice. An admission made by a party may be withdrawn or may be explained away and, therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The Supreme Court clarified that it will be open to the respondents to cross examine the plaintiff on all points on which the plaintiff can be legitimately cross examined and the decision would neither bar nor preclude any question that can be legally put to the plaintiff on cross examination.