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2004 DIGILAW 719 (PNJ)

Harwinder Singh v. Balwinder Singh

2004-07-19

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The plaintiff is in revision petition against the order passed by the learned trial Court whereby the defendant-respondent was permitted to amend the written statement filed by his mother Mukhtiar Kaur. 2. The plaintiff-petitioner filed a suit for declaration to the effect that he is the owner in possession of l/3rd share of suit land against his mother. Smt. Mukhtiar Kaur filed written statement admitting the claim of the plaintiff but before the Court could pass a decree on the basis of such admission, Smt. Mukhtiar Kaur died. The respondent herein is his son impleaded as her legal representative who filed an application under Order 6 Rule 17 of the Code of Civil Procedure for withdrawing the admission written statement filed on behalf of Mukhtiar Kaur alleging therein that the plaintiff has manipulated admission of defendant fraudulently and against the interest of Mukhtiar Kaur. It was also alleged that Mukhtiar Kaur could not make this admission and such admission was wrong, erroneous and against the interest of the maker. Such application for amendment has been allowed by the learned trial Court which order is being challenged by the petitioner by way of present revision petition. 3. The learned counsel for the petitioner has vehemently argued that by virtue of the amendment the defendant has sought to withdraw the admission made by his mother Mukhtiar Kaur in the written statement. The legal representatives of Mukhtiar Kaur i.e. the respondents herein, cannot be permitted to withdraw admission in the present suit. He relied upon the decision of this Court in the case of Life Insurance Corporation of India v. Atam Parkash Sharma, (1994-3)108 Punjab Law Reporter 28 and Jagga Singh v. Harpal Singh, (1995-1)109 Punjab Law Reporter 763 to contend that the admission made in the written statement cannot be permitted to be withdrawn. 4. Learned counsel for the respondents controverted such argument raised by the petitioner and asserted that admission can be proved to be wrong and can be explained, as the case may be. In the present case, the defendant has clearly and unequivocally asserted that the admission written statement filed on behalf of Mukhtiar Kaur is a manipulated admission obtained fraudulently without the knowledge of Mukhtiar Kaur. In the present case, the defendant has clearly and unequivocally asserted that the admission written statement filed on behalf of Mukhtiar Kaur is a manipulated admission obtained fraudulently without the knowledge of Mukhtiar Kaur. It would be a question of fact which can be appreciated on the basis of evidence whether such admission is binding on Mukhtiar Kaur and consequently upon the answering defendants or such admission written statement is not binding on the rights of the defendants. Reliance was placed upon the decision of the Supreme Court reported as Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Anr. A.I.R. 1983 S.C. 462 as well as the judgments of this Court reported as Kehar Singh v. Balraj Singh and Ors. 1991 P.L.J. 154; Gujjar Singh v. Gulzar Singh and Ors. (1991-2)100 Punjab Law Reporter 266; and Naresh Kumar v. Shri Rajinder Paul Sharma, (2002-2)131 Punjab Law Reporter 618. 5. In Atom Parkash Sharmas case (supra) relied upon by learned counsel for the petitioner, the defendant has sought to withdraw the admission made in written statement alleging negligence of the counsel. It was found that it is not a ground to permit the defendant to withdraw a clear admission. It was held that unless by reference to the facts it is shown that it was made under mistaken belief or the same was erroneous, the admission made in the written statement cannot be permitted to be withdrawn. It was held to the following effect:- "....The only explanation the learned counsel for the respondent offered during the course of hearing was that the defendant made admission in the written statement on account of negligence of the counsel. This in my view is hardly a ground to permit the defendant to withdraw a clear admission made in the written statement unless by reference to the facts it is shown that the same was made under mistaken belief or the same was erroneous. The amendment sought does not appear to be bona fide on the face of it." 6. In Jagga Singhs case (supra), amendment in the written statement was declined on the ground that earlier the defendant has taken a plea of permissive possession and subsequently by way of amendment the defendant has sought to allege that his possession was adverse. It was held that if such plea is allowed to be raised, it would require fresh trial of the entire suit. It was held that if such plea is allowed to be raised, it would require fresh trial of the entire suit. The amendment was declined as it was held that inconsistent or mutually destructive plea cannot be permitted to be raised by seeking amendment of pleadings. The case referred to is clearly distinguishable. 7. The admission is the best evidence. The admitted fact need not be proved. However, it is equally well settled that admissions are not conclusive as contemplated under Section 31 of the Indian Evidence Act, 1872 which stipulated that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels. The maker of the admission is at liberty to prove that the admissions are mistaken or are untrue. The admissions are mere pieces of evidence. Therefore, unless the party making admission is given an opportunity either to explain admission as untrue or by mistake or not binding for any other reason how the said party would be able to show that such admission is not binding on him. 8. In Kehar Singhs case (supra), this court allowed the defendant to amend the written statement when it held to the following effect;- "On a consideration of the matter, I am of the view that this revision deserves to succeed. It is true that Kehar Singh made an admission that defendants 2 to 9 owned 8/9th share in the land, which was subject matter of gifts but it is always open to a party to show that the admission was wrong. If defendants 2 to 9 are the collaterals of an equal degree to the plaintiff, it will be open to them to show the same and if they establish then the plaintiff will fail in spite of amendment. But in case the plaintiff is not given opportunity to back out of the wrong admission, he would not be able to show that the admission was wrong. On the peculiar facts of this case, it is justified in the interest of justice to allow amendment in this behalf." 9. Subsequently, in Gujjar Singh v. Gulzar Singh and Ors., (1991-2)100 Punjab Law Reporter 266 the defendant was allowed to explain the admission earlier made in the written statement as it was found that such admission has been made erroneously and on assumed facts. Subsequently, in Gujjar Singh v. Gulzar Singh and Ors., (1991-2)100 Punjab Law Reporter 266 the defendant was allowed to explain the admission earlier made in the written statement as it was found that such admission has been made erroneously and on assumed facts. It was held to the following effect;- "Defendant No. 1, Gulzar Singh, in my view has thus fully explained that the admission earlier made in the written statement was apparently erroneous and on assumed facts and in such a situation a party cannot be refused to amend its pleadings even if it is sought to be done at a quite later stage or appellate stage. Thus, I do not find any impropriety, illegality or material irregularity in the order allowing the amendment of the written statement." 10. Still further, another Bench of this Court in Naresh Kumars case (supra) held as under:- "It is true that a party in the garb of amendment of its pleadings cannot be allowed to introduce such an amendment, the effect of which is the withdrawal of admission made earlier, but it is equally true that party is always at liberty to show that admission made earlier is erroneous. In Panchdeo Narain v. Jyoti, A.I.R. 1983 Supreme Court 462 it was ruled by the Honble Supreme Court that an admission made by a party may be withdrawn or explained away." 11. After going through the judgments referred to by learned counsel for the parties and keeping in view the well established principles pertaining to amendment of pleadings, I am of the opinion that the defendant has a right to prove that the averments made in the admission written statement are factually incorrect and that such admission is manipulated by the plaintiff or fraudulent and is, thus, not bona fide. On the basis of admission written statement, the Court could pass a decree forthwith. Had such a decree been passed the respondents would have a right to challenge such decree alleging therein that the admission on the basis of decree had been passed is not voluntary or is fraudulent. However, it cannot be said that the defendant has no right to prove that the admissions in the written statement are not manipulated or fraudulent as such admissions have been made by way of written statement. However, it cannot be said that the defendant has no right to prove that the admissions in the written statement are not manipulated or fraudulent as such admissions have been made by way of written statement. The defendant has given explanation seeking amendment and whether such explanation is credible and worth acceptance, it is required to be examined after the parties are genuine opportunity to lead evidence whether such admissions contained in the written statement are manipulated or fraudulent. The defendant will have an opportunity to lead evidence only if the amendment is allowed. If an opportunity is given the defendant will have an opportunity to prove that the admissions contained in the written statement are not binding upon him and that they were not made bona fide. If such an opportunity is not given then the defendant will have no opportunity to prove that the admissions are incorrect. 12. In a give case, the court may find that the explanation to seek amendment is in order to wriggle out of admission is, prima facie, absurd and cannot be accepted. It is open to the Court to decline the admission. But if in a given case the Court is prima facie of the opinion that the admissions made in the written statement were either incorrect or by way of mistake either in law or fact or result of any fraud or manipulation the defendant can be permitted to amend his written statement. Once the written statement is amended the parties will be at issue whether such admissions are binding on the defendant or not. The doors for trial for the defendant cannot be shut only because the alleged admission is in the written statement. If the defendant is permitted to amend the written statement, it would obliterate the necessity of the defendant to challenge the decree in subsequent proceedings and thus would avoid multiplicity of the proceedings. It would be in the interest of justice if issues arising out of admissions are decided in this very suit and to avoid the multiplicity of proceedings. In view of the above, I do not find that the order passed by the learned trial court permitting amendment in the written statement suffers from any illegality or irregularity warranting interference by this Court in exercise of its revisional jurisdiction. No merits, Dismissed.