TMI Blog1997 (11) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... real brothers of the plaintiff filed a joint written statement on 01st October 1993 in the Trial Court. In the written statement a definite stand was taken by the contesting defendants that out of the listed properties in Schedule-A only three properties at items 4,9 and 10 were exclusively belonging to the contesting defendants and were not joint family properties of the plaintiff and defendant nos. 1 and 2. Meaning thereby that the other seven properties listed in Schedule-A were admitted to be joint family properties. Not only that but in para 11 of the written statement it was submitted that 'the plaintiff is only entitled for partition regarding the properties of Schedule-A except items 4,9 and 10 and all the properties mentioned in Schedule-B. They also stated in the said para 11 of the written statement that so far as admitted properties were concerned, the plaintiff was entitled to 1/3rd share and remaining 2/3rd share belonged to defendant nos. 1 and 2. It appears that thereafter the suit remained pending for trial for number of years. On the basis of the aforesaid stand taken by the contesting parties in the written statement, issues were framed by the Trial Court. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission which amounted to an inconsistent stand on his part, such an inconsistent stand in written statement could not be said to be prohibited by the procedural law. For arriving at that conclusion of his, reliance was paced on some of the judgements. of this Court to which our attention was invited by the learned counsel for the respondents in support of the judgment and to which we will make a reference hereafter. Resultantly, the revision application moved by the respondent was allowed by the High Court. That is how the plaintiff is before us in this appeal. In our view, the order passed by the High Court under Section 115, CPC, allowing withdrawal of earlier admissions of defendant nos.1 and 2 in their original written statement about 5 out of 7 items of Schedule -A properties cannot be sustained. The reason is obvious, so far as Schedule-A properties were concerned, a clear admission was made by defendant nos. 1 and 2 in their joint written statement in 1993 that 7 properties out of 10 were joint family properties wherein the plaintiff had 1/3rd share and they had 2/3rd undivided share. Once such a stand was taken, naturally it must be held that there was no contest betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The defendant from the inception contended that the plaintiff's suit should be dismissed but the ground on which dismissal was claimed was sought to be changed by an alternative plea. Therefore, there was no question of any prejudice to the plaintiff if such an inconsistent stand was allowed. That is how this Court in the aforesaid decision held that such amendment in written statement could have been granted. Such is not the case before us. Here if the amendment is granted, the whole case of the plaintiff qua admitted joint family properties would get displaced as the defendants themselves had in clear terms admitted that in 7 items of properties in Schedule-A plaintiff had 1/3rd undivided interest. On that basis even preliminary decree could have been passed by the court at that stage. As that right which had accrued to the plaintiff, as noted earlier, would be irretrievably last if such amendment is allowed qua five of these seven items in Schedule-A of the plaint for which by the impugned amendment the earlier admissions were sought to be recalled. Our attention was also invited to another decision of a bench of two learned judges of this Court in the case of Akshaya Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. The defendants in their written statement admitted that by virtue of an agreement date 07th April 1967 the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under order Vi Rule 17 sought amendment of written statement by substituting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that plaintiff was mercantile agent cum-purchaser, meaning thereby they sought to go behind their earlier admission that plaintiff was stockist- cum-distributor. Such amendment was rejected by the Trial Court and the said rejection was affirmed by the High Court in Revision. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned judges of this the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the ace of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, on the facts of this case and as discussed earlier, no case was made out by the respondents, contesting defendants, for amending the written statement and thus attempting to go behind their admission regarding 5 out of 7 remaining items out of 10 listed properties in Schedule-A of the plaint. However, so far as Schedule-B properties are concerned from the very inception the defendants' case qua those properties was that plaintiff had no interest therein. By proposed amendment they wanted to introduce an event with reference to those very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely or prejudicially affected the case of the plaintiff or displaced any admission on their part qua Schedule-B properties which might have resulted into any legal right in favour of the plaintiff. Therefore, so far as Schedule-B properties were concerned, the amendment could not be found fault with. Hence exercising the powers under Article 136 of the Constitution of India we would not be inclined to interfere with that part of the decision of the High Court tallowing the amendment in the written statement, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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