RAJESH KUMAR Vs. CHAMAN LAL

JUDGEMENT

(1.) Heard Sri N.K. Chaturvedi, Learned Counsel for the petitioners and Sri H. P. Mishra, Learned Counsel for the respondent No. 1. The respondent No. 2 is also defendant in the suit along with the petitioners. The present writ petition arises out of orders passed on an amendment application in an appeal after the decision in the suit. The suit filed was for partition and one of the pleas raised in the plaint, copy whereby is Annexure-2 to the writ petition, was that one Shiv, who was the common ancestor of the plaintiff and the defendants, was the owner of the property in dispute and after his death, the property was distributed according to the shares alleged therein. These averments relating to the property being owned by Shiv having been inherited according to shares are recited in paragraphs 2 and 3 of the plaint. The written statement, which was filed by the petitioner-defendants before the trial court is Annexure-3 to the writ petition. Para 2 of the written statement categorically admits the contents of para 2 of the plaint.

(2.) The trial court proceeded to decree the suit for reasons disclosed therein including the reasons of the said admission contained in para 2 of the written statement. The crux, therefore, is that it was admitted by the defendant that the property in dispute, was the property of late Shiv.

(3.) At the stage of appeal, the defendant filed an amendment application contending that para No. 2 of the written statement had been a result of a typographical mistake inasmuch as instead of saying that para 2 of the plaint is denied, it was wrongly stated that it is being admitted. For this, the explanation given is that the word no (????) has been left out after the word ????? due to inadvertence in para 2 of the written statement. It should be permitted to be incorporated at the stage of appeal, but the said amendment application has been rejected on the ground that this completely changes the nature of the stand taken in the written statement and it amounts to resiling back from an admission, which is impermissible in law. Such a plea for amendment at the stage of appeal, therefore, should not be construed liberally and accordingly, the appellate court rejected the same.