Vimala Prakash Babu vs K.N.Mahesh
2021 Latest Caselaw 1795 Kant

                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF MARCH, 2021

                       BEFORE

        THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

        WRIT PETITION NO.3209 OF 2020 (GM-CPC)

BETWEEN:
1 . VIMALA PRAKASH BABU
NEE' K.N.VIMALA,
W/O SRI PRAKASH BABU
AND D/O LATE SRI K.N.NAGANNA,
AGED ABOUT 65 YEARS,
RESIDING AT E-33, ARISTOS-2,
SOBHA CITY
THANISANDRA MAIN ROAD,
HEGDE NAGAR,
BENGALURU - 560 077.

2 . MALA PATIL
NEE' K.N.MALA
W/O SRI KEDARNATH B. PATIL
AND D/O LATE SRI K.N.NAGANNA,
AGED ABOUT 62 YEARS,
RESIDING AT NO.302 'B',
N.R.GREENWOOD ORCHID
GARDENIA,
RACHENHALLI MAIN ROAD,
(NEAR MESTRIPALYA CHURCH),
SHIVARAM KARNATH NAGAR,
BENGALURU - 560 064.

3 . VEENA VISHWANATH MUNUGALA
NEE' K.N.VEENA
W/O SRI VISHWANATH MUNUGALA
AND D/O LATE SRI K.N.NAGANNA,
AGED ABOUT 54 YEARS,
PRESENTLY RESIDING AT NO.1695,
N.BREA BOULEVARD, FULLERTON,
CALIFORNIA - 92835
UNITES STATE OF AMERICA
REPRESENTED BY HER SISTER AND
POWER OF ATTORNEY
MALA PATIL
                               2

W/O SRI. KEDARNATH B. PATIL
AND D/O LATE SRI K.N.NAGANNA
AGED ABOUT 57 YEARS.
                                                ...PETITIONERS
(BY SRI. S.S.RAMDAS, ADVOCATE)

AND:

1 . K.N.MAHESH,
S/O LATE SRI.K.N.NAGANNA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.3/2,
PALACE LOOP ROAD,
VASANTH NAGAR,
BANGALORE - 560 052.

2 . K.N.ANNAPURANA,
W/O LATE SRI K.N.NAGANNA,
AGED ABOUT 87 YEARS,
RESIDING AT NO.3/2,
PALACE LOOP ROAD,
VASANTH NAGAR,
BANGALORE - 560 052.
                                               ...RESPONDENTS
(R1, R2 ARE SERVED;
V/O DTD: 17/02/2021 P1 - P3 & R1 ARE TREATED AS LR'S OF
DECEASED R2))

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN O.S.NO.5924/2015 ON THE FILE OF XL
ADDL.CITY   CIVIL   JUDGE,   BANGALORE.;   SET    ASIDE     THE
IMPUGNED      ORDER    DATED      11.12.2018     (ANNX-A)    IN
O.S.NO.5924/2015 IA NO.VII PASSED BY THE XL ADDL. CITY
CIVIL JUDGE, BANGALORE; AND ETC.

       THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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                               ORDER

There is a suit for partition & separate possession of the

properties in O.S.No.5924/2015; it is filed by the petitioners

& the second respondent; the first respondent happens to be

the sole defendant; he resisted the suit by filing the Written

Statement dated 01.10.2015 vide Annexure-C; issues having

been framed trial is about to commence; presumably, the

pendency of the multiple applications has retarded the

commencement of trial.

2. The above being the position, the first respondent

moved an application on 03.12.2015 in IA No.7 under Order

VI Rule 17 of CPC, 1908 at Annexure-G seeking leave of the

learned trial Judge for amending his Written Statement; the

same was objected to by the petitioners herein; over-ruling

the Objections learned XL Additional City Civil Judge,

Bangalore vide order dated 11.12.2015 favoured the subject

application and granted leave to amend the Written

Statement, as sought for;

3. Aggrieved by the grant of leave for amending the

Written Statement, petitioners are knocking at the doors of

the writ court arguing that the amendment takes away the

admissions made by the first defendant in his Written

Statement and that there is no justification for such

withdrawal; despite service, the first respondent who happens

to be the contesting party has chosen to remain

unrepresented; however, that will not relieve this Court from

deciding the cause on its merits.

4. Having heard Sri. S.S.Ramdas, learned Sr.

Advocate appearing for the petitioners and having perused

the petition papers, this Court is inclined to grant indulgence

in the matter for the following reasons:

(a) As already mentioned above, suit is one for

partition; pleadings are complete and issues are framed;

petitioners had moved an application in I.A.No.6 under Order

XII Rule 6 vide Annexure-F seeking a "judgment on

admission"; this was on the basis of a specific stand taken by

the first respondent in his Written Statement consciously; it

is only as an after thought this respondent seeks to amend

the Written Statement and the same is calculated to defeat

the arguable right of the petitioners to gain a 'judgment on

admission'; thus, the subject application for amendment

lacks the bona fide and therefore could not have been

favoured by the Court below.

(b) The first respondent at para 3 of his Objections to

the petitioners' aforesaid application in I.A.No.6, has stated

as under:

"3. It is no doubt true and correct that the defendant herein filed the written statement also the counter claim on 01-10-2015 as mentioned in para 3 of the affidavit. Further, though the defendant admitted that the parties are entitled for partition in respect of suit schedule item No.A, C.E & F as narrated therein, the said admission do not result in adjudication of the questions involved in the proceedings. Further, the said stray admission cannot be a basis for the purpose of passing the partial decree and judgment thereon as prayed for in the application filed by the plaintiffs." sic

The text of this paragraph unmistakably contains the

admission of first respondent and that he himself agrees that

the amendment in question would result into withdrawal of

the admission; this apart, at para 9 of the Written Statement

he has stated as under:

"It is specifically denied that K.N.Naganna was the absolute owner and in his peaceful possession and enjoyment of the property morefully described in the schedule to the plaint ad alleged in para 7 of the plaint. The plaintiffs are put to strict proof of the

same. It is true and correct at the K.N. Naganna died intestate in Benaluru on 19-03-2014 as alleged n the same para leaving behind the parties to the suit as class -I heirs. It is further true and correct that the parties herein are entitled to 1/5th equal share in respect of schedule properties A, C, E, & F (Tayota Etios Car) as alleged in the said para."

Thus there was a clear cut admission as to the extent of share

in the properties A, C, E & F in the Plaint Schedule; the Court

below while granting leave virtually has permitted withdrawal

of this admission, there being no justifiable reason therefor

nor any special case having been made warranting such

withdrawal.

(c) Ordinarily, the pre-trial requests for amendment

of pleadings particularly in suits of the kind are favoured as a

rule; however, the stage of the proceedings is irrelevant when

the amendment is intended to withdraw or otherwise results

into withdrawal of the conscious admission of material facts;

though section 31 of the Evidence Act, 1872 declares the

admissions to be "not conclusive", the Apex Court

consistently holds the view that an admission is a substantive

piece of evidence and that the admissions made in the

pleadings being sacrosanct cannot be readily be permitted to

be withdrawn, as rightly contended by Sr. Counsel for the

petitioners; no special circumstances avail from record to

carve out an exception to the above view in favour of the

respondent; even the affidavit supporting the subject

application has scanty fact matrix justifying withdrawal of the

admission by amending the Written Statement; this aspect of

the matter has not animated the impugned order and

therefore constitutes an added error apparent on its face.

(d) The above apart, the proposed amendment vide

para 2 in the subject application seeks to omit the Item E of

the suit schedule property from para 9 of the Written

Statement; this paragraph runs one & half lines giving an

impression that nothing significant is going to happen by

permitting such deletion; a deeper examination thereof shows

that it has enormous effect on the right that has accrued in

favour of the petitioners for seeking a judgment on admission

inter alia in respect of this item of the property; the learned

Judge appears to have been misled by seeing the shortness of

the sentence in proposed para 2 of the amendment

application.

In the above circumstances, this writ petition succeeds;

impugned order is invalidated; the first respondent's subject

application for amendment of Written Statement is dismissed;

all other contentions of the parties are kept open for being

taken up on the floor of the court below.

It is needless to reiterate the direction for disposal of all

the pending applications preferably before the onset of

Summer Vacation - 2021.

Costs made easy.

Sd/-

JUDGE

DS