Paragraph numbers below are the court’s original numbering, recovered from the source text.
16. The clear stand taken by Defendant No. 5 when he RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA AND OTHERS [KURIAN, J.] was aged 37 and when he was in active business is that his A father had separated from the grandfather in the year 1942 and since then, he was carrying on independent business and holding separate property. It is crucially relevant to note that the declaration of Defendant No. 12 before the Arbitrators regarding the relinquishment was produced by them only.
17. Learned Counsel for Defendant Nos. 5 and 12, in the impugned order has placed heavy relevance on Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Another1. It was a case where the plaintiff moved an application for amendment C of the plaint regarding the relationship of the second defendant. It was stated in the plaint that he was the uterine brother of one R. Later, an application for amendment was moved for deletion of the word "uterine" from the plaint. The Trial Court allowed the application but in Revision, the High Court set aside the D order. While restoring the order passed by the Trial Court, this Court held at Paragraph-3 of the Judgment as follows: "3. Even if the High Court was justified in holding that the deletion of the word 'Uterine' has some significance and E may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisi~:inal jurisdiction. We may, in this connection, refer to Ganesh Trading Co. v. Moji Ram wherein this Court after a review F · of number of decisions speaking through Beg, C.J. observed that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the· learned counsel for the respondents contended that by the oevice of amendment a very important admission is G being withdrawn. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot 1 (1984) Supp. SCC594 ·s c be said that by amendment an admission of fact cannot be withdrawn. The learned Trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jwisdiction for a reason which is untenable ought not to have interfered with the order inade by the trial court. The learned counsel for the respondents in this connection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment. The decision does not lay down any particular principle of law and appears to be a decision on its own facts. And ordinarily, it is well settled that unless there is an error in exercise of jurisdiction by the trial court, the High Court would not interfere with the order in exercise of its revisional jurisdiction."
18. The above decision was followed in Sushi I Kumar Jain v. Manoj Kumar and another2. The case pertained to eviction proceedings. The original stand taken by the tenant was that there were different tenancies. However, an F application for amendment was moved stating that there are three different portions under one tenancy and not different portions under different tenancies. The Court, at Paragraph- 12, held as follows: "12. In our view, having considered the averments made in the application for amendment of the written statement, it cannot be said that in fact neither any admission was made by the appellant in his original written statement 2 (2009) 14 sec 38 nor had the appellant sought to withdraw such admission A made by him in his written stateme~t. That apart, after a careful reading of the application for amendment of the written statement, we are of ttie view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written B statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence." C
19. The learned Counsel appearing for the appellant mainly referred to three Judgments of this Court. In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co.3, it was held as follows at Paragraph-10: "10. 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 "Yill be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the F application for amendment and'agreed with the trial court."
20. In Gautam Sarup v. Leela Jetly and others4, after considering Panchdeo Narain Srivastava (supra) and Modi G Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. ' (1976) 4 sec 320 • (2008) 7 sec 85 A (supra) and several other decisions dealing with the amendment on withdrawal of admissions in the pleadings, it was held at Paragraph-28 as follows: "28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
21. On amendments generally, in the decision reported o in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others5, 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; H • (2009) 10 sec 84 RAM NIRANJAN KAJARIAv. SHEO PRAKASH KAJARIA AND OTHERS [KURIAN, J.] (4) refusing amendment would in fact lead to A 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 C kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
22. In the case before us, we are afraid, many of the D 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 E 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 F 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 aftertwentyfive years, we are afraid, cannot be permitted.
23. 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 H A been framed in the case before us, only in200B. 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 B to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram lchharam alias Brijram and others6. To quote Paragraph-27: c "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 rnay 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. 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) H • (1974) 1 sec 242 __ _
24. We agree with the position in Nagindas Ramdas A (supra) and as endorsed in Gautam Sarup (supra) that a categorical a_dmission 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.
25. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. In this context, C we are also mindful of the averment in the application for amendment that: "11. , … Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 when the defendant No. 5 was D only 2 years and the defendant No. 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. The defendant No.5 and his two sisters, namely, Kusum and Bina were brought up and were E maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now members of the joint family. In the marriage of the two sisters of the defendant no.5 Kusum and Bina (now after F marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are Well known to all the family members and their relations."
26. In the counter affidavit filed before this Court, Defendant Nos. 5 and 12 have stated as follows: 'The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad used in the arbitration proceedings H where she was not a party admitting relinquishment of the share of her husband and thereafter admitting such letter in the original pleading is not what the answering respondents want to resile and/or withdraw from but by the present amendment had only ought to explain the circumstances in which such letter has been written."
27. In the above circumstances, we do not intend to make the suit filed in the year 2005 otherwise infructuous. The application for amendment withdrawing the admissions made C in the written statement on relinquishment of the claim to the suit property by Defendant Nos. 5 and 12 is rejected. However, we, in the facts and circumstances of the case, are of the view that Defendant Nos. 5 and 12 should be given an opportunity to explain/clarify the admissions made in the written statement. D Accordingly, Defendant Nos. 5·and 12 are permitted to file an application within one month from today limiting their prayer only to the extent of explaining/clarifying the disputed admissions in the written statement which will be considered on its merits and in the light of the observations made herein E above.
28. Though the learned Counsel for the appellant · vehemently pressed for costs, we reluctantly refrain from passing any order in that regard. After all, it is a suit for partition F of the family property. At any stage, the parties can have a change of heart and ignore the law or facts or other technicalities and reach an amicable settlement.
29. The appeals are partly allowed as above. The G impugned Judgment will stand modified to the extent indicated herein above.
30. There shall be no order as to costs. Kalpana K. Tripathy Appeals partly allowed.