JANU LAXMAN KUMBHAR Vs. PANDURANG LAXMAN KUMBHAR

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution takes exception to the order dated 10-1-1996 passed by the Civil Judge, J. D. , Ajara below Ex. 71 in Regular Civil Suit No. 75 of 1988.

(2.) BY the abovesaid application filed under Order 6, Rule 17 of the Code of Civil Procedure the petitioner (defendant) prayed for permission to amend written statement by inserting additional new paras (4a) and (4b) in the original written statement. This prayer has been rejected by the Court below by the impugned order mainly on the ground that this would result in permitting the petitioner-defendant to withdraw admissions given by him in the written statement. It is not necessary to advert to all the other details relating to the rival stands taken by the parties inter se. Suffice it to say that in the written statement the petitioner took specific stand that the suit property was subject matter of partition effected by metes and bounds between the brothers of the petitioner and same has came exclusively to the share of the petitioner. This assertion made in the written statement is now sought to be withdrawn by the petitioner praying for insertion of paras (4a) and (4b) in the written statement whereby the petitioner wants to contend that the suit property is self acquired property which has been allotted in his favour directly by the Government and that the respondent has no concern with the same. Learned Counsel for the petitioner contends that it is open to the party to take inconsistent pleas. To buttress his submission reliance has been placed on the decision of the Apex Court in the case of (Akshaya Restaurant v. P. Anjanappa and another), 1996 (1) I. C. C. 445. Besides the said decision learned Counsel also relied upon decision of the Apex Court in the case of (Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another), A. I. R 1983 S. C. 462, (Chander Prakash and another v. Om Prakash Bajaj and others), A. I. R 1986 Delhi 116.

(3.) HAVING considered that rival submissions at the outset it needs to be mentioned that reliance placed on the decision of the Apex Court in the case of Akshaya Restaurant (supra) squarely overlooks the subsequent decision of the Supreme Court reported in the case of (Heeralal v. Kalyan Mal and others), 1998 (1) S. C. C. 278 which has held that the view taken in Akshaya Restaurants case is per incuriam. According to the subsequent decision of the Apex Court once written statement contains an admission in favour of the plaintiff, by the amendment such admission of the defendant cannot be allowed to be withdrawn, if such withdrawal displaces the case of the plaintiff and which causes irretrievable prejudice. The fact situation of the present case is squarely covered by the principles enunciated by the Apex Court in Heeralals case (supra ). In so far as the decision of the Supreme Court in the case of Panchdeo Narain Srivastavas (supra) is concerned the same in my view is an authority on the proposition as to the justification for rejecting the amendment in exercise of revisional jurisdiction. The learned Counsel has placed reliance on the observations made in para 3 of the said decision that an admission made by the party may be withdrawn or may be explained away and it cannot be said that by amendment an admission of fact cannot be withdrawn. The observations made by the Apex Court in the said decision are obviously contextual. In any case in the said decision the Apex Court has not taken the view that it is open to the party to withdraw the admission so as to displace the case of the other side and cause irretrievable prejudice. In so far as the reliance placed on the decision of the Delhi High Court (A. I. R. 1986 Delhi 116) is concerned the same does not deal with the fact situation as in the present case but the principle enunciated by the Apex Court in Heeralals case squarely applies and therefore, I find no reason to interfere with the view taken by the trial Court that if the petitioner is allowed to withdraw the admission in the written statement it will irretrievable prejudice the respondent-plaintiff in as much as the stands taken in the original written statement and the proposed amendment are diametrically opposite in the context of the claim for assertion of title with regard to the suit property. Hence this petition fails and dismissed with no order as to costs.