JAGDISH SINGH Vs. CHANDER

JUDGEMENT

(1.) This petition under Section 115 of the Code of Civil Procedure is directed against the order of Sub-Judge Ist Class, Sonepat, dated December 15, 1977, allowing the application of the defendants under Order 6 rule 17 of the Code for amendment of the written statement.

(2.) The plaintiffs filed a suit giving rise to this petition that they were owners of the property in dispute on the basis of the will. In the written statement, the defendants not only challenged the validity of the will alleged to have been made in favour of the plaintiffs but also set up another will alleged to have been executed by the last holder of the property in dispute in their name. During the course of their evidence they alleged that the original will had been lost and consequently they filed an application for production of secondary evidence which was disallowed and revision against that order of the trial Court was dismissed by this Court. It was thereafter that they made an application for permission to amend their written statement that so as to take the plea that the last holder of the property was not competent to make a will respecting the property in dispute which was ancestral qua them.

(3.) The learned counsel for the petitioners has challenged the validity of the impugned order and contended that the application had been made mala fide after the decision of this Court declining the prayer to lead secondary evidence to prove the alleged will in favour of the defendants. It was further argued by the learned counsel that the party cannot be allowed to withdraw an admission made in the pleadings in favour of the opposite party and raise a contrary plea. In support of this contention, the learned counsel relied on M/s Modi Spinning and Weaving Mills Co. Ltd. and another V. M/s Ladha Ram and Co., 1977 AIR(SC) 680 wherein it was held that application for an amendment seeking to introduce entirely a new cause and to displace the plaintiff completely from the admission made by the defendants in the written statement cannot be allowed. A similar view was taken by P.C. Pandit, J. in Harbans Singh V. Mehnga Singh and others, 1973 AIR(P&H) 409 and Smt. Ikbal Begum V. Akhtar Ali, 1973 AIR(P&H) 478.