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2003 DIGILAW 1234 (PNJ)

Raj Pati Alias Roshni v. Dharam Singh

2003-09-03

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The plaintiff-petitioner is aggrieved by the order passed by the learned trial court rejecting in part her application for amendment of the plaint. 2. The plaintiff is the daughter of Pirthi who is owner of 102 Kanals 5 Marias of land. On 5.4.1990, one Dharam Singh obtained a consent decree against Smt. Raj Kali, the alleged wife of Pirthi. It is the said decree which is challenged by the plaintiff in the suit originally filed on 4.1.1992. However, Dharam Singh filed another suit against Smt. Raj Kali and the present plaintiff. In the said suit, defendant No. 2 i.e. present plaintiff was given up and on the basis of admission written statement of defendant No. 1 another decree was passed on 6.1.1992 The plaintiff has filed an application for amendment of the plaint on 10.4.1992 i.e. after the expiry of three months of filing of the suit. 3. Originally, the plaintiff has filed suit against Dharam Singh and Raj Kali wherein the plaintiff has claimed a declaration that the plaintiff and Raj Kali are owners in possession of equal shares in the suit land. The plaintiff has subsequently sought amendment in the plaint to plead that defendant No. 2 was not the widow of deceased Pirthi, rather she was her Rakhail (keep) and her counsel has wrongly shown her as widow of Pirthi deceased. The plaintiff also wants to challenge that the mutation dated 25.9.1991 regarding inheritance of deceased Pirthi in favour of defendant No. 2 is illegal and null and void. 4. The learned trial Court has, however, allowed the amendment in respect of correction of name of the plaintiff and to implead the subsequent vendees as well as to incorporate the challenge to the sale deeds affected by the defendant. 5. The learned trial court has declined the amendment pertaining to the status of defendant No. 2 on the ground that it amounts to withdrawal of admission and, these, it cannot be allowed. The learned trial Court has relied upon the decisions in Modi Spinning & Weaving Mills Co. Ltd. and another v. Ladha Ram & Co., AIR 1977 SC 680, Mrs. Nirmal Sethi and Ors. v. Deep Chand Anand and Ors., 1993(1) L.J.R. 164 (Delhi), Mathia v. Prem Lal and Ors., 1993(1) L.J.R. 608 (H.P.) and Jangir Singh v. Mchinder Singh v. Mohinder Kaur and Ors., (1998-3)120 P.L.R. 39. 6. Ltd. and another v. Ladha Ram & Co., AIR 1977 SC 680, Mrs. Nirmal Sethi and Ors. v. Deep Chand Anand and Ors., 1993(1) L.J.R. 164 (Delhi), Mathia v. Prem Lal and Ors., 1993(1) L.J.R. 608 (H.P.) and Jangir Singh v. Mchinder Singh v. Mohinder Kaur and Ors., (1998-3)120 P.L.R. 39. 6. The teamed trial court declined the application partly by holding as under;- "The amendment by which the plaintiff wants to say that defendant No. 2 namely, Raj Kali was not the legally wedded wife of Pirthi and was his keep cannot be allowed because this would amount to withdrawal of the admission made by the plaintiff. The valuable right of defendants would be jeopardised. No doubt, the admission made by any party can be allowed to be withdrawn by way of allowing amendment of the pleadings of the parties, but the party should satisfy that the admission made by it was erroneous and against the factual position. But in this case, no such document has been placed on the file by the plaintiff to show that defendant No. 2 was the keep of Pirthi and not his legally wedded wife. So, this amendment cannot be allowed to be carried out by the plaintiff..." 7. It is, thus, apparent from the reasoning given by the learned trial Court that the admission made by the party cannot be allowed to be withdrawn, but the party should satisfy that the admission made by it was erroneous and negates factual position. The trial Court declined the application on the ground that no such document was placed on the file by the plaintiff to show that defendant No. 2 was the keep of Pirthi and not his legally wedded wife. 8. The plaintiff moved an application having alleged that Smt. Raj Kali has been wrongly admitted to be the widow of Pirthi. Actually she is not the widow of Pirthi and she is living as Rakhail and this is due to the fault of the lawyer. The plaintiff is not to suffer due to the fault of the lawyer. The learned counsel for the plaintiff-petitioner has argued that the plaintiff is a rustic and illiterate villager not conversant with the technicalities of law. Therefore, the averments have been made in the pleadings inadvertently on misunderstanding of the facts by her Advocate before the trial Court. The plaintiff is not to suffer due to the fault of the lawyer. The learned counsel for the plaintiff-petitioner has argued that the plaintiff is a rustic and illiterate villager not conversant with the technicalities of law. Therefore, the averments have been made in the pleadings inadvertently on misunderstanding of the facts by her Advocate before the trial Court. She has moved an application for amendment of the plaint just in three months time of the filing of the suit. The petitioner has also filed an affidavit dated 6.9.1997 in this Court to the effect that her mothers name is Makaur and she had left the deponent and her father when she was about 4 months of age and she was brought up by her father Pirthi in village Beholi, Tehsil Samalkha, District Panipat. 9. In view of the above, learned counsel for the petitioner submitted that the admission made in the plaint was inadvertent and reasons for such admission have been explained and, therefore, the petitioner is entitled to amend the plaint. 10. However, to controvert, learned counsel for the respondents has relied upon the decision of the Supreme Court in the case of Heeralal v. Kalyan Mal, A.I.R. 1998 S.C. 618 as well as the decision of this Court in the case of Lashkar Singh v. Bhulla Singh, 1998(2) Recent Civil Reports (Civil) 646 and Ram Saroop v. Asla Devi, (1998-3)120 P.L.R. 39. It is also argued that there is a categoric admission in the plaint originally filed which the plaintiff cannot be allowed to be withdrawn. 11. I have heard learned counsel for the parties and with their assistance have gone through the record as well. 12. It cannot be disputed that the admission is the best evidence. However it is also a settled proposition that admission can be explained. In fact, the Supreme Court in the case reported as Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., A.I.R. 1960 S.C. 100 has held that an admission is the best evidence that an opposing party can rely upon and through not conclusive is decisive of the matter unless successfully withdrawn or proved erroneous. 13. This Court has the occasion to consider the decision of the Supreme Court in Heeralals case (supra), relied upon by the learned counsel for the respondents, in the case of Tilak Raj Mahajan v. Rattan Chand, (1999-1)121 P.L.R. 152. 13. This Court has the occasion to consider the decision of the Supreme Court in Heeralals case (supra), relied upon by the learned counsel for the respondents, in the case of Tilak Raj Mahajan v. Rattan Chand, (1999-1)121 P.L.R. 152. In the said case, the learned Single Judge of this court has considered the entire case law on the subject and held to the following effect:- "It is obvious from what has been noted above that admission made cannot be allowed to be withdrawn, particularly when it takes the vested right of the other party. But admission, if explained or shown to be erroneous, can be withdrawn. It goes with the facts and circumstances of each case. If it is shown that inadvertently an incorrect fact was mentioned in the pleadings, in that event, interest of justice can well require that amendment should be allowed." 14. In view of the facts of the present case and the case law discussed above, it is apparent that the plaintiff being illiterate and rustic villager is not aware of the technicalities of law. The plaintiff has filed an affidavit before this Court which is thumb-marked. The plaintiff was necessarily relying upon her Advocate who drafted the plaint as understood by him. The mistake in understanding the fact stated by the plaintiff-petitioner cannot be ruled out. The amendment application has been filed on the expiry of three months of filing of the suit. The case was at the initial stage itself. In these circumstances, I am of the opinion that the plaintiff-petitioner has explained sufficiently that the averment made in the plaint was erroneous. It would be in the interest of justice if the parties are put to trial on the question whether Smt. Raj Kali was the legally wedded wife of Pirthi or not. If Smt. Raj Kali was the legally wedded wife, the defendant can very well prove that aspect of the matter but if inadvertently a fact has been stated in the plaint, the plaintiff is justified in seeking amendment in the plaint on account of the facts mentioned above. 15. Consequently, I am of the opinion that the order passed by the learned trial court declining the amendment sought for on the plea that the plaintiff is withdrawing the admission is wholly illegal, not sustainable in law and causes manifest injustice to the plaintiff-petitioner. 16. 15. Consequently, I am of the opinion that the order passed by the learned trial court declining the amendment sought for on the plea that the plaintiff is withdrawing the admission is wholly illegal, not sustainable in law and causes manifest injustice to the plaintiff-petitioner. 16. Resultantly, the revision petition is allowed and the order dated 21.3.1998 is set aside to the extent it has disallowed the amendment sought for by the petitioner by allowing the application under Order 6 Rule 17 of the Code of Civil Procedure in its entirely.