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2019 DIGILAW 3189 (MAD)

M. Devi v. D. Soodamani

2019-11-19

N.ANAND VENKATESH

body2019
ORDER : PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India praying this Court to set aside the fair and decretal order made in I.A.No.166 of 2012 in O.S.No.1 of 2007, dated 13.7.2012, on the file of the Additional District and Sessions Judge, Dindigul. This Civil Revision has been filed challenging the fair and final order passed by the Court below in dismissing the application filed by the Petitioners under Order VIII Rule X of Civil Procedure Code to file an additional written statement. 2. The respondents 1 and 2 filed a suit seeking for the relief of partition and separate possession of 1/8th share in the property and for other consequential reliefs. 3. The Petitioners are the defendants 10 and 11 in the suit. Initially, the Petitioners and defendants 6 and 9 were represented by the same counsel and the written statement came to be filed on 6.6.2007. 4. The written statement was filed by the 9th defendant and a memo was also filed to the effect that the written statement is adopted by defendants 6, 10 and 11. 5. Subsequently, the present Petitioners, who are the defendants 10 and 11 in the suit have changed their counsel and have filed an application under Order VIII Rule IX of Civil Procedure Code to file an additional written statement on the ground that certain essential facts were not pleaded in the written statement that was filed by the 9th defendant and therefore, they must be given an opportunity to file an additional written statement. 6. The Court below has dismissed the application mainly on the ground that the Petitioners have already adopted the written statement filed by the 9th defendant and they cannot be permitted to bring in new facts by way of filing an additional written statement. The Court below has also found that the Petitioners had attempted to file the additional written statement when the suit was at the stage of trial and there was absolutely no explanation as to why the Petitioners waited till 2012 to file this application. Therefore, the Court below found that an attempt has been made to drag on the proceedings. 7. Therefore, the Court below found that an attempt has been made to drag on the proceedings. 7. The learned counsel for the Petitioners submitted that the Petitioners are entitled to file an additional written statement and it is a settled law that the defendants are entitled to take even a new and contradictory stand in the additional written statement. The learned counsel submitted that even assuming that the Petitioners had adopted the original written statement that was filed by the 9th defendant, it is always open to the Petitioners to file an additional written statement by bringing-forth certain facts which are essential for the purpose of deciding the suit. The learned counsel submitted that the Court below should have given an opportunity to the Petitioners to file an additional written statement and ultimately, whatever is pleaded in the additional written statement will become the subject-matter of trial and the Court below can always decide the case in accordance with law. 8. It is an admitted fact that the Petitioners, who are the defendants 10 and 11 in the suit have adopted the written statement that was filed by the 9th defendant. This written statement came to be filed in the year 2007. The case was at the stage of trial and in the year 2012, the Petitioners have chosen to file the present application under Order VIII Rule IX of Civil Procedure Code for filing an additional written statement. 9. In the additional written statement, a completely new case has been brought-forth by the defendants. This has been noted by the Court below at Paragraph No.7 of the order. This Court has consistently held that a completely new case cannot be permitted to be introduced in the additional written statement, more particularly, after the commencement of the trial. Useful reference can be made to the judgment of this Court in the case of S.Sathish and another .vs. Dr.Sumathi and four others reported in 2010(5)CTC 198 and the relevant portion of the judgment is extracted hereunder: ''16.It has been held in the judgment reported in 2008(7)SCC 85, in the case of Gautam Sarup vs. Leela Jetly and other which affirmed the principles laid down in Modi Spg. & Wvg. & Wvg. Mills Co., Ltd., vs. Ladha Raman & Co., [1976(4)SCC 320] held as follows; "It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court. Therefore, when the admissions made earlier were allowed to be taken back by reason of the amendment, the plaintiffs will be irretrievably prejudiced and in such cases, the defendant should not be allowed to amend the written statement by deleting admission made earlier and to introduce a new case. This was explained in the case of Usha Balashabeh Swami and others vs. Kiran Appaso Swami and others [2007(5)SCC 602]:- "Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of the plaintiff and defendants 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao, Therefore, it must be held that in view of our discussions made herein above, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement." In that case, the Honourable Supreme Court has held that when the admissions are kept intact and by way of amendment only additional facts are stated, such amendment can be allowed. 17. 17. In this case also, the earlier admission made by the revision petitioners in the original written statement are kept intact and in the additional written statement, they also admitted the execution of the document in favour of the 5th respondent, but only have taken a new plea that the 4th respondent has played fraud on them and sold the property in favour of the 5th respondent. 18. Further in the judgment reported in 2009(6)MLJ 933 in the case of E.O.Mohammed Ali vs. Dessi Ammal Alias Jessima Deevi and others, this Court has held that when no inconsistent stand has been taken in the written statement it can be allowed. 19. Further this Court has held in the judgment reported in 2007(4) MLJ 1098 in the case of S.Suresh vs. Sivabalakannan that leave to file additional written statement is to be granted liberally, except when the defendant raises mutually destructive pleas or tries to introduce a new case altogether by way of filing an additional written statement. 20. It has been held in the judgment reported in 2007(5) CTC 722 , in the case of Muthuraman vs. Muthukumaran that object of filing of additional written statement is to supply what might have been omitted in written statement filed earlier and such additional written statement can be allowed if it is not likely to cause prejudice to plaintiff. 21. The Honourable Supreme Court in the judgment reported in 2009(7)MLJ 1081 [SC], in the case of Olympic Industries vs. Mulla Hussainy Bhai Mulla Akerally and others held that introducing new ground of defence in additional counter statement is not ground for dismissing application so long as same does not result in causing grave injustice and irretrievable prejudice to plaintiff. 22. In the judgment reported in 1999(3) CTC 52 , in the case of Subramanian and others vs. Jayaraman, it has been held that subsequent pleadings by defendant even though contradictory to the original written statement, could be taken in the form of additional written as plea of res-judicata and estoppel are legal pleas and cannot be seriously objected and to give a fair trial by affording adequate opportunities to both parties it is required that the grant of leave for filing additional written statement is just and necessary. 23. 23. Further the Honourable Supreme Court held in the judgment reported in 2006(6) SCC 498 , in the case Baldev Singh and others vs. Manohar Singh and another that adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. 24. It is further held in that judgment that in the case of amendment of written statement, the Courts are inclined to grant liberty in allowing the amendment of written statement than of plaint and inconsistent plea can be raised by the defendants in the written statement. Therefore, from the above principles laid down by the Honourable Supreme Court and our High Court it can be inferred that even in the case of amendment of written statement, the Courts have held that liberal approach must be taken. As stated supra, in the case of receipt of additional written statement, the admission made earlier is not wiped out and is going to be kept intact and therefore, even though a different stand is taken in the additional written statement, no prejudice will be caused to the plaintiff. Further, it is made clear from the aforesaid judgments, additional written statement or amendment of written statement cannot be allowed, when it causes serious prejudice to the plaintiffs or irretrievable damage will be caused to the plaintiffs by allowing such application.'' 10. The judgment that has been referred supra will squarely apply to the facts of the present case. That apart, where an admission has been made in the earlier written statement, by tracing the title to the property in a particular manner, by virtue of filing an additional written statement, the Petitioners cannot be permitted to withdraw that admission. If such practice is allowed, there will be no end to the pleadings and the defendants can always come up with a new case at every stage of the proceedings. Useful reference can be made to the judgment of the Honourable Supreme Court in the case of Ram Niranjan Kajaria .vs. Sheo Prakash Kajaria and others reported in (2015) 10 Supreme Court Cases 203 and the relevant protion of the judgment is extracted hereunder: ''20. Useful reference can be made to the judgment of the Honourable Supreme Court in the case of Ram Niranjan Kajaria .vs. Sheo Prakash Kajaria and others reported in (2015) 10 Supreme Court Cases 203 and the relevant protion of the judgment is extracted hereunder: ''20. On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows: “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 21. In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendant Nos. 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted. 22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others. To quote Paragraph-27: “27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.” (Emphasis supplied) 23. We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled.'' 11. In view of the above discussion, this Court is of the considered view that the court below was right in dismissing the application filed seeking leave to file an additional written statement. This Court finds no illegality or infirmity in the order passed by the Court below. 12. In the result the fair and final order passed by the Court below in I.A.No.166 of 2012 in O.S.No.1 of 2007, dated 13.7.2012 is hereby sustained and the Civil Revision Petition is dismissed. Further, the Court below is directed to complete the proceedings in O.S.No.1 of 2007 within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is dismissed. 2019 (5) LW 547 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT N.ANAND VENKATESH, J. M.Devi and ors. – Petitioners Versus D.Soodamani and ors. – Respondents CRP (PD)(MD) No.1740 of 2012 and M.P (MD) No.1 of 2012 Decided On : 19-11-2019 Cases Referred : Baldev Singh and others vs. Manohar Singh and another, 2006 (6) SCC 498 E.O. Mohammed Ali vs. Dessi Ammal Alias Jessima Deevi and others, 2009 (6) MLJ 933 Gautam Sarup vs. Leela Jetly and other, 2008 (7) SCC 85 Modi Spg. & Wvg. & Wvg. Mills Co., Ltd., vs. Ladha Raman & Co., 1976(4)SCC 320 Muthuraman vs. Muthukumaran, 2007 (5) CTC 722 Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others Olympic Industries vs. Mulla Hussainy Bhai Mulla Akerally and others, 2009 (7) MLJ 1081 SC Ram Niranjan Kajaria .vs. Sheo Prakash Kajaria and others, (2015) 10 SCC 203 Revajeetu Builders and Developers v. Narayanaswamy and Sons and others S.Sathish and another .vs. Dr.Sumathi and four others, 2010 (5) CTC 198 S.Suresh vs. Sivabalakannan Subramanian and others vs. Jayaraman, 1999 (3) CTC 52 Usha Balashabeh Swami and others vs. Kiran Appaso Swami and others 2007 (5) SCC 602 Advocates Appeared : For the Petitioner : Mr. K. Govindarajan ORDER : PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India praying this Court to set aside the fair and decretal order made in I.A.No.166 of 2012 in O.S.No.1 of 2007, dated 13.7.2012, on the file of the Additional District and Sessions Judge, Dindigul. This Civil Revision has been filed challenging the fair and final order passed by the Court below in dismissing the application filed by the Petitioners under Order VIII Rule X of Civil Procedure Code to file an additional written statement. 2. The respondents 1 and 2 filed a suit seeking for the relief of partition and separate possession of 1/8th share in the property and for other consequential reliefs. 3. The Petitioners are the defendants 10 and 11 in the suit. Initially, the Petitioners and defendants 6 and 9 were represented by the same counsel and the written statement came to be filed on 6.6.2007. 4. The written statement was filed by the 9th defendant and a memo was also filed to the effect that the written statement is adopted by defendants 6, 10 and 11. 5. Subsequently, the present Petitioners, who are the defendants 10 and 11 in the suit have changed their counsel and have filed an application under Order VIII Rule IX of Civil Procedure Code to file an additional written statement on the ground that certain essential facts were not pleaded in the written statement that was filed by the 9th defendant and therefore, they must be given an opportunity to file an additional written statement. 6. 6. The Court below has dismissed the application mainly on the ground that the Petitioners have already adopted the written statement filed by the 9th defendant and they cannot be permitted to bring in new facts by way of filing an additional written statement. The Court below has also found that the Petitioners had attempted to file the additional written statement when the suit was at the stage of trial and there was absolutely no explanation as to why the Petitioners waited till 2012 to file this application. Therefore, the Court below found that an attempt has been made to drag on the proceedings. 7. The learned counsel for the Petitioners submitted that the Petitioners are entitled to file an additional written statement and it is a settled law that the defendants are entitled to take even a new and contradictory stand in the additional written statement. The learned counsel submitted that even assuming that the Petitioners had adopted the original written statement that was filed by the 9th defendant, it is always open to the Petitioners to file an additional written statement by bringing-forth certain facts which are essential for the purpose of deciding the suit. The learned counsel submitted that the Court below should have given an opportunity to the Petitioners to file an additional written statement and ultimately, whatever is pleaded in the additional written statement will become the subject-matter of trial and the Court below can always decide the case in accordance with law. 8. It is an admitted fact that the Petitioners, who are the defendants 10 and 11 in the suit have adopted the written statement that was filed by the 9th defendant. This written statement came to be filed in the year 2007. The case was at the stage of trial and in the year 2012, the Petitioners have chosen to file the present application under Order VIII Rule IX of Civil Procedure Code for filing an additional written statement. 9. In the additional written statement, a completely new case has been brought-forth by the defendants. This has been noted by the Court below at Paragraph No.7 of the order. This Court has consistently held that a completely new case cannot be permitted to be introduced in the additional written statement, more particularly, after the commencement of the trial. 9. In the additional written statement, a completely new case has been brought-forth by the defendants. This has been noted by the Court below at Paragraph No.7 of the order. This Court has consistently held that a completely new case cannot be permitted to be introduced in the additional written statement, more particularly, after the commencement of the trial. Useful reference can be made to the judgment of this Court in the case of S.Sathish and another .vs. Dr.Sumathi and four others reported in 2010(5)CTC 198 and the relevant portion of the judgment is extracted hereunder: ''16.It has been held in the judgment reported in 2008(7)SCC 85, in the case of Gautam Sarup vs. Leela Jetly and other which affirmed the principles laid down in Modi Spg. & Wvg. Mills Co., Ltd., vs. Ladha Raman & Co., [1976(4)SCC 320] held as follows; "It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court. Therefore, when the admissions made earlier were allowed to be taken back by reason of the amendment, the plaintiffs will be irretrievably prejudiced and in such cases, the defendant should not be allowed to amend the written statement by deleting admission made earlier and to introduce a new case. This was explained in the case of Usha Balashabeh Swami and others vs. Kiran Appaso Swami and others [2007(5)SCC 602]:- "Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of the plaintiff and defendants 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao, Therefore, it must be held that in view of our discussions made herein above, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement." In that case, the Honourable Supreme Court has held that when the admissions are kept intact and by way of amendment only additional facts are stated, such amendment can be allowed. 17. In this case also, the earlier admission made by the revision petitioners in the original written statement are kept intact and in the additional written statement, they also admitted the execution of the document in favour of the 5th respondent, but only have taken a new plea that the 4th respondent has played fraud on them and sold the property in favour of the 5th respondent. 18. Further in the judgment reported in 2009(6)MLJ 933 in the case of E.O.Mohammed Ali vs. Dessi Ammal Alias Jessima Deevi and others, this Court has held that when no inconsistent stand has been taken in the written statement it can be allowed. 19. Further this Court has held in the judgment reported in 2007(4) MLJ 1098 in the case of S.Suresh vs. Sivabalakannan that leave to file additional written statement is to be granted liberally, except when the defendant raises mutually destructive pleas or tries to introduce a new case altogether by way of filing an additional written statement. 20. It has been held in the judgment reported in 2007(5) CTC 722 , in the case of Muthuraman vs. Muthukumaran that object of filing of additional written statement is to supply what might have been omitted in written statement filed earlier and such additional written statement can be allowed if it is not likely to cause prejudice to plaintiff. 21. It has been held in the judgment reported in 2007(5) CTC 722 , in the case of Muthuraman vs. Muthukumaran that object of filing of additional written statement is to supply what might have been omitted in written statement filed earlier and such additional written statement can be allowed if it is not likely to cause prejudice to plaintiff. 21. The Honourable Supreme Court in the judgment reported in 2009(7)MLJ 1081 [SC], in the case of Olympic Industries vs. Mulla Hussainy Bhai Mulla Akerally and others held that introducing new ground of defence in additional counter statement is not ground for dismissing application so long as same does not result in causing grave injustice and irretrievable prejudice to plaintiff. 22. In the judgment reported in 1999(3) CTC 52 , in the case of Subramanian and others vs. Jayaraman, it has been held that subsequent pleadings by defendant even though contradictory to the original written statement, could be taken in the form of additional written as plea of res-judicata and estoppel are legal pleas and cannot be seriously objected and to give a fair trial by affording adequate opportunities to both parties it is required that the grant of leave for filing additional written statement is just and necessary. 23. Further the Honourable Supreme Court held in the judgment reported in 2006(6) SCC 498 , in the case Baldev Singh and others vs. Manohar Singh and another that adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. 24. It is further held in that judgment that in the case of amendment of written statement, the Courts are inclined to grant liberty in allowing the amendment of written statement than of plaint and inconsistent plea can be raised by the defendants in the written statement. Therefore, from the above principles laid down by the Honourable Supreme Court and our High Court it can be inferred that even in the case of amendment of written statement, the Courts have held that liberal approach must be taken. Therefore, from the above principles laid down by the Honourable Supreme Court and our High Court it can be inferred that even in the case of amendment of written statement, the Courts have held that liberal approach must be taken. As stated supra, in the case of receipt of additional written statement, the admission made earlier is not wiped out and is going to be kept intact and therefore, even though a different stand is taken in the additional written statement, no prejudice will be caused to the plaintiff. Further, it is made clear from the aforesaid judgments, additional written statement or amendment of written statement cannot be allowed, when it causes serious prejudice to the plaintiffs or irretrievable damage will be caused to the plaintiffs by allowing such application.'' 10. The judgment that has been referred supra will squarely apply to the facts of the present case. That apart, where an admission has been made in the earlier written statement, by tracing the title to the property in a particular manner, by virtue of filing an additional written statement, the Petitioners cannot be permitted to withdraw that admission. If such practice is allowed, there will be no end to the pleadings and the defendants can always come up with a new case at every stage of the proceedings. Useful reference can be made to the judgment of the Honourable Supreme Court in the case of Ram Niranjan Kajaria .vs. Sheo Prakash Kajaria and others reported in (2015) 10 Supreme Court Cases 203 and the relevant protion of the judgment is extracted hereunder: ''20. On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows: “63. On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows: “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 21. In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendant Nos. 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted. 22. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted. 22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others. To quote Paragraph-27: “27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.” (Emphasis supplied) 23. We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled.'' 11. In view of the above discussion, this Court is of the considered view that the court below was right in dismissing the application filed seeking leave to file an additional written statement. This Court finds no illegality or infirmity in the order passed by the Court below. 12. In the result the fair and final order passed by the Court below in I.A.No.166 of 2012 in O.S.No.1 of 2007, dated 13.7.2012 is hereby sustained and the Civil Revision Petition is dismissed. Further, the Court below is directed to complete the proceedings in O.S.No.1 of 2007 within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is dismissed.