Case Note & Summary
This appeal arose from a civil suit for partition of immovable properties filed by the appellant-plaintiff in 1993 before the District Judge, Bundi. The respondent-defendants, who were real brothers of the plaintiff, filed a joint written statement on 01 October 1993. In that written statement, they admitted that seven out of ten properties listed in Schedule A were joint family properties, and that the plaintiff was entitled to a one-third share while the defendants held the remaining two-thirds. They disputed only three properties listed as items 4, 9 and 10. Based on this admission, the trial court framed issues, including Issue No. 2 which concerned only the disputed three properties. After the plaintiff moved an application for appointment of a receiver in respect of the seven admitted properties, and about eighteen months later, the first defendant sought to amend the written statement to withdraw the admissions regarding five of the seven properties. The grounds were alleged incomplete information and a heart attack in 1989. The trial court dismissed the amendment application as not bona fide and filed only to protract proceedings. The High Court, in revision under Section 115 CPC, allowed the amendment, holding that admissions made earlier could be explained and inconsistent pleas were not prohibited by procedural law. The plaintiff appealed to the Supreme Court. The Supreme Court held that the High Court's order could not be sustained. It observed that once a clear admission was made regarding the seven properties, there was no contest between the parties on those items, and under Order XV Rule 1 CPC the plaintiff could have sought a preliminary decree forthwith. Allowing the amendment would irretrievably prejudice the plaintiff by depriving him of the benefit of that admission. The Court distinguished the earlier decisions in Basavan Jaggu Dhobi and Akshaya Restaurant, noting that in those cases the defendants did not seek to withdraw an admission in favour of the plaintiff. It also relied on the three-judge bench decision in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co., which held that an inconsistent plea displacing the plaintiff's case from admissions cannot be allowed. The Supreme Court found that the two-judge bench decision in Akshaya Restaurant was per incuriam as it ignored the binding three-judge bench decision. Accordingly, the Supreme Court set aside the High Court's order and restored the trial court's dismissal of the amendment application, thereby rejecting the amendment.
Headnote
A) Civil Procedure - Amendment of Written Statement - Withdrawal of Admission - Code of Civil Procedure, 1908, Order VI Rule 17, Order XV Rule 1 - Defendant sought to amend written statement to withdraw admission that seven Schedule-A properties were joint family properties in which plaintiff had 1/3rd share - Trial Court dismissed amendment as belated and mala fide; High Court allowed revision - Supreme Court held that once clear admission was made, plaintiff acquired right to preliminary decree under Order XV Rule 1, and amendment causing irretrievable prejudice cannot be allowed - Held that inconsistent plea displacing plaintiff's case not permissible; High Court order set aside and Trial Court's dismissal restored (Paras not mentioned). B) Civil Procedure - Precedents - Distinguishing Decisions - Code of Civil Procedure, 1908, Order VI Rule 17 - Basavan Jaggu Dhobi and Akshaya Restaurant allowed inconsistent pleas but did not withdraw admissions in favour of plaintiff - Modi Spinning (three-judge bench) held that amendment withdrawing admission causing irretrievable prejudice cannot be allowed - Akshaya Restaurant failed to notice Modi Spinning and is per incuriam - Held that three-judge bench decision governs (Paras not mentioned).
Issue of Consideration
Whether the High Court erred in allowing the defendant to amend the written statement to withdraw the earlier admission about joint family properties, thereby displacing the plaintiff's right to a preliminary decree under Order XV Rule 1 CPC?
Final Decision
Appeal allowed. High Court order set aside. Trial Court's dismissal of the amendment application restored. The amendment application seeking to withdraw the admission about seven joint family properties was rejected.
Law Points
- amendment of written statement cannot withdraw admission causing irretrievable prejudice
- admission in pleading can be explained but not withdrawn to displace plaintiff's case
- Order XV Rule 1 CPC allows court to pronounce judgment where no issue
- three-judge bench decision binding
- per incuriam if not noticed
