JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard learned counsel for the parties. By means of the present revision, the revisionist is challenging the orders dated 5.12.2015 and 10.12.2015 passed on his application 102-Ka for amendment and 107-Ga for review of the order dated 5.12.2015. 2. By means of amendment application 102-Ka, the revisionist sought to amend paragraph ‘9’ of the written statement which is as under : “9-That the contents of para No. 10 of the plaint are wrong and strictly denied. No notice dated 15.3.2011 has been given by the plaintiff and the defendant never received the said notice and alleged notice is invalid.” 3. In paragraph ‘9’ of the written statement the revisionist/defendant denied the contents of paragraph ‘10’ of the plaint. 4. Paragraph ‘10’ of the plaint is as under : “10- That under these circumstances the plaintiff terminated the tenancy of the defendant by notice dated 15.3.2011 through Shri A.K. Goyal, Advocate which notice was returned in collusion with the postman. To avoid technical objections, fresh notice of Quit & Demand dated 18/20.4.2011 was sent to the defendant which was served upon the defendant on 23.4.2011. However, the defendant failed to comply with the said notice.” 5. In paragraph ‘10’ of the plaint, the plaintiff had pleaded regarding service of notice dated 15.3.2011 sent through Sri A.K. Goyal. It was stated that this notice was returned in collusion with the postman. With regard to another notice dated 18/20.4.2011, it was stated that it was sent to the defendant and was served upon the defendant on 23.4.2011. 6. In reply, the defendant though denied the service of notice dated 15.3.2011 but did not state a word regarding the service of notice dated 18/20.4.2011 except denial. 7. By means of the amendment, he sought to add the pleading that the alleged notice dated 18/20.4.2011 was never served upon him nor he had ever refused to accept this notice nor he had any knowledge about such notice. 8. Submission is that the amendment application has been rejected on the ground of delay. While preparing the written statement by mistake the counsel did not mention the date of notice dated 18/20.4.2011 in paragraph ‘9’ of the written statement, though there is a categorical denial of the contents of the paragraph ‘10’ of the plaint. This mistake is sought to be corrected by way of amendment. 9. While preparing the written statement by mistake the counsel did not mention the date of notice dated 18/20.4.2011 in paragraph ‘9’ of the written statement, though there is a categorical denial of the contents of the paragraph ‘10’ of the plaint. This mistake is sought to be corrected by way of amendment. 9. Earlier an application 93-Ga was filed by the revisionist for summoning the documents regarding service of notice and for examining the postman for proving the same but it was rejected vide order dated 25.8.2015. 10. This order was challenged in SSC Revision No. 310 of 2015 (M/s Panchwati Marketing Pvt. Ltd. v. Ravindra Kumar Jain) which was disposed of on 8.10.2015 with the observations as follows : “Heard Sri Ashish Agrawal, learned counsel for the revisionist and Sri Madhav Jain, learned counsel for the opposite party. This SCC Revision has been filed against the order dated 25.8.2015 passed in SCC Suit No. 36 of 2011 by the Additional District Judge, Court No. 17, Agra, by which application No. 93 (ga) filed by the revisionist for summoning the relevant document regarding the service of notice and examining the postman for proving the same has been rejected. To this application, an objection was filed by the other side stating therein that the suit was filed in the year 2011 and the defendant has been filing application after application with the view to delay the proceeding and the present application has also been filed with a view to delay the disposal of the suit. It was also stated that the relevant materials are already on record and there is no need to summon the original record and examine the postman. The Court below looking into the pendency of the case for the last 3 -4 years, rejected the application filed by the revisionist taking shelter of the provisions contained under Order 13, Rule 10 of the Code of Civil Procedure on the ground that the order for summoning the document can only be passed in case that is necessary for doing substantial justice to the parties and the Court concerned, at the stage of final hearing, in case find that the summoning of record is necessary, it may summon the same. Sri Agrawal submits that the finding recorded by the Court below to the extent of presumption of service without there being any specific finding on record or any prove on record that it was served on the revisionist, shall not be treated to be conclusive in view of Section 27 of the General Clauses Act; whereas, Sri Jain, learned counsel for the opposite party submits that in view of the averments made in para 9 of the written statement, there is no doubt regarding the service. After hearing counsel for the parties, I am of the view that the Court below has not committed any illegality in rejecting the application of the revisionist. However, it is observed that the finding regarding presumption of service of summon may not be treated to be conclusive and it is open for the revisionist to prove the same otherwise, if necessary. With the aforesaid observation/direction, the revision is disposed of.” 11. Submission is that as this Court has left open to the Court below to decide the question of service of notice and further to the revisionist to prove the same otherwise, the amendment sought herein is necessary. In absence of pleading regarding service of notice, the revisionist will not be able to dislodge the presumption of service of summons drawn by the Court below. 12. Submission is that inconsistent plea can be allowed to be taken/added by way of amendment as has been held by the Supreme Court in Baldev Singh and others etc. v. Monohar Singh and another etc., 2006 (3) ARC 253 and Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, 2007 (2) ARC 402. 13. Referring to paragraph ‘20’ of the judgment of Supreme Court in Usha Balashaheb Swami (supra), he submits that addition of a new ground of defence for substituting or altering a defence or taking inconsistent pleas in the written statement cannot be refused by the Court. The amendment in the plaint and the written statement stand on a different footing. 14. On the other hand, learned counsel for the opposite party submits that bald denial of service of notice in paragraph ‘9’ of the written statement as against categorical statement in paragraph ‘10’ of the plaint would amount to admission regarding service of notice upon the defendant. 14. On the other hand, learned counsel for the opposite party submits that bald denial of service of notice in paragraph ‘9’ of the written statement as against categorical statement in paragraph ‘10’ of the plaint would amount to admission regarding service of notice upon the defendant. By way of amendment, the defendant sought to take away his admission made in the written statement. The amendment which amounts to taking away admission in the pleading cannot be allowed. 15. Dealing with these submissions of the learned counsel for the parties in the light of law laid down by Apex Court in Baldev Singh (supra) and Usha Balashaheb Swami (supra), the paragraph ‘13’ in Baldev Singh and paragraph ‘27’ in Usha Balashaheb Swami are relevant and are reproduced as under : “13. In view of this decision, it can be said that the plea of limitation can be allowed to be raised as an additional defence by the appellants. Accordingly, we do not find any reason as to why amendment of the written statement introducing an additional plea of limitation could not be allowed. The next question is that if such amendment is allowed, certain admissions made would be allowed to be taken away which are not permissible in law. We have already examined the statements made in the written statement as well as the amendment sought for in the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement in depth, we do not find any such admission of the appellants which was sought to be withdrawn by way of amending the written statement.” “27. Since we have already held that in the case of amendment of a written statement, the defendant is entitled to take new defence and also to plead inconsistent stand and in view of our discussions made herein above that by making the application for amendment of the written statement, admission was not at all withdrawn by the appellants nor a totally inconsistent plea was taken by the appellants in their application for amendment of the written statement, the High Court had failed to appreciate that by the proposed amendment, the appellants were not withdrawing their admission in respect of the half share in the ancestral property rather they only added that the plaintiff and defendant Nos. 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half share in the property of late Veersangayya. That apart, it appears from the record that the written statement filed by the appellants was before the death of defendant No. 1 (first wife of Appasao). After the death of defendant No. 1, when plaintiff and defendant Nos. 2 to 8 claimed themselves as heirs and legal representatives of defendant No. 1, the appellants sought amendment of the written statement challenging the legitimacy of plaintiff and defendant Nos. 2 to 8. In view of the discussions made herein above, we do not think that it was impermissible in law for the appellants to seek amendment of the written statement in the manner it was sought for.” 16. A combined reading of these two paragraphs and the facts of above referred cases, it is clear that such amendment which amounts to taking away certain admissions in the pleading are not permitted in law. 17. This Court does not find any ground in the plea taken by the learned counsel for the revisionist that by way of amendment only inconsistent plea is sought to be taken and there is no withdrawal of the admission of the defendant. Non-denial of services of notice which is clear and categorical in paragraph ‘10’ of the plea amounts to admission of the petitioners regarding service of notice. By way of amendment, the admission cannot be withdrawn by him. Hence the amendment cannot be allowed. 18. There is no ground in the revision, hence dismissed. 19. It goes without saying that the Court below after consideration of the evidence of the parties, shall record its independent finding on the service of summons without being influenced by any of the observations made above. ———————