Case Note & Summary
The petitioner, Shashikant Dhondiram Kalaskar, who is defendant no.2 in Regular Civil Suit No.969 of 2017 pending before the Jt. Civil Judge Junior Division, Newasa, challenged the order dated 17.08.2022 allowing the plaintiff (respondent no.1 herein) to amend the plaint. The suit was filed by the plaintiff seeking partition of the suit property and other related reliefs. In the original plaint, the plaintiff had averred that she was in possession of the suit property and had been cultivating crops. Defendant no.2 filed a written statement denying the plaintiff's possession and claiming that he himself was in possession. Before the commencement of trial, the plaintiff filed an application (Exh.18) seeking to delete all averments relating to her possession of the suit property and to add a prayer for mesne profits during the pendency of the suit. The trial court allowed the amendment. Aggrieved, defendant no.2 filed the present writ petition. The petitioner's counsel, Mr. Zafar M. Pathan, argued that the averments regarding possession constituted admissions under Section 58 of the Indian Evidence Act, 1872, and that allowing their deletion would prejudice the defendant and alter the nature of the suit. He relied on the Supreme Court judgment in Ram Niranjan Kajaria vs. Sheo Prakash Kajaria & Ors., 2015 (6) ALL MR 416, and the Bombay High Court judgment in Deubai Tukaram Pakhare and Others vs. Muktabai Tukaram Pakhare and others, 2000 (1) Mh.L.J. 511. The court, after hearing the counsel and perusing the records, held that the amendment was sought before the commencement of trial and was therefore permissible under Order VI Rule 17 of the Code of Civil Procedure, 1908. The court noted that the suit was for partition and possession, and the deletion of possession averments did not change the nature of the suit because the plaintiff still sought possession through partition. The court further held that the averments in the plaint were not conclusive admissions and could be withdrawn, especially since the amendment was sought at an early stage and the defendant could still contest the issue of possession. The court found no prejudice to the defendant that could not be compensated by costs. Accordingly, the writ petition was dismissed, and the trial court's order allowing the amendment was upheld.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Pre-trial Amendment - The court considered whether deletion of possession averments before trial amounts to withdrawal of admissions under Section 58 of the Indian Evidence Act, 1872. Held that since the amendment was sought before commencement of trial, it is permissible under Order VI Rule 17 CPC, and the deletion of averments does not alter the nature of the suit or cause irreparable prejudice to the defendant, as the defendant can still contest the issue of possession. (Paras 1-8) B) Evidence Act - Admissions - Section 58 Indian Evidence Act, 1872 - Withdrawal of Admissions - The court examined whether averments in a plaint constitute formal admissions that cannot be withdrawn. Held that admissions in pleadings are not conclusive and can be explained or withdrawn, especially when the amendment is sought before trial and does not change the fundamental character of the suit. (Paras 5-8) C) Civil Procedure - Amendment of Pleadings - Change in Nature of Suit - Order VI Rule 17 CPC - The court assessed whether deletion of possession averments changes the nature of the suit from one for partition and possession to one for mere partition. Held that the suit remains one for partition and possession; the amendment only removes an inconsistent claim regarding current possession, and the plaintiff still seeks possession through partition. (Paras 5-8)
Issue of Consideration
Whether the trial court erred in allowing the plaintiff to amend the plaint by deleting averments regarding possession, which the defendant contends constitute admissions under Section 58 of the Indian Evidence Act, 1872, and whether such amendment alters the nature of the suit or causes prejudice to the defendant.
Final Decision
The writ petition is dismissed. The order dated 17.08.2022 passed by the Jt. Civil Judge Junior Division, Newasa below Exh.18 in Regular Civil Suit No.969 of 2017 allowing the amendment is upheld. No order as to costs.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Withdrawal of admissions
- Section 58 Indian Evidence Act
- 1872
- Pre-trial amendment
- Change in nature of suit
