Shri Janu Laxman Kumbhar vs Shri Pandurang Laxman Kumbhar
2001 Latest Caselaw 508 Bom

JUDGMENT

A.M. Khanwilkar, J.

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 above said 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 come 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 This assertion made in the written statement is now sought to be withdrawn by the petitioner praying for insertion of paras 4a and 4b in the written statement whereby the petitioner wants to contend that the suit property is self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 Ann.. Besides the said decision learned counsel also relies upon decision of the Apex Court in the case of Panchdeo Narain Srivastava u. Km. Jyoti Sahay and another,: Chander Prakash and another u. Om Prakash Bajaj & Ors.,.

3. Having considered the 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 in the case of Heeralal v. Kalyan Mal and others, which has held that the view taken in Akshaya Restaurant's 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 Heeralal's case (supra). Insofar as the decision of the Supreme Court in the case of Panchdeo Narain Srivastava (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 ills open to the party to withdraw the admission so as to displace the case of the other side and cause Irretrievable prejudice. Insofar as the reliance placed on the decision of the Delhi High Court 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 Heeralal's 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 irretrievably prejudice the respondent -plaintiff Inasmuch 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.

4. At this stage Mr. Kulkarni prays that the suit is pending before the Trial Court since 1998. In the circumstances the Trial Court is directed to dispose of the suit expeditiously and preferably within a period of six months from the date of receipt of writ of this Court.