TMI Blog2015 (9) TMI 1715X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. The application for amendment withdrawing the admissions made in the written statement on relinquishment of the claim to the suit property by Defendant Nos. 5 and 12 is rejected - However in the facts and circumstances of the case, the Defendant Nos. 5 and 12 should be given an opportunity to explain/clarify the admissions made in the written statement - appeal allowed in part. - Civil Appeal No. 7213-7214 of 2015 (Arising from S.L.P. (C) Nos. 31423-31424/2010) and Civil Appeal No. 7215 of 2015 (Arising from S.L.P. (C) Nos. 33891/2010) - - - Dated:- 18-9-2015 - Anil R. Dave, Kurian Joseph and Amitava Roy, JJ. For Appellant: Vijay Hansaria, Sr. Adv., K. Datta, Abhinav Hansaria, Praveen Agarwal, Abhay Kumar, Rahul Malhotra and Niti Arora, Advs. For Respondents: Pradip Kumar Dutta, Sr. Adv. Debnath Ghosh, Adv. for Abhijit Sengupta, Adv., Partha Sil and Tavish Bhusan Prasad, Advs. JUDGMENT Kurian Joseph, J. 1. Leave granted. 2. Whether a Defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases. 3. Partition Suit No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares of my grand father Late Motilal Kajaria and as such I state that we have been unnecessarily joined as Defendants. 5. In the Order dated 02.05.1979, while appointing a Court Receiver in respect of the suit property, the court recorded the following findings: ... Mahabir Prasad Kajaria had no interest in the property as such Respondent No. 5 (Sheo Prakash Kajaria) also can have no interest in the said property. The allegation that the co-owners have not received any money towards their shares is incorrect.... 6. After Defendant Nos. 5 and 12 filed written statement on 14.09.1979, Smt. Bhagwani Devi Kajaria-Defendant No. 16, who is the mother of late Mahabir Prasad Kajaria (Grand mother of Defendant No. 5 and mother-in-law of Defendant No. 12), filed a written statement clearly stating that late Mahabir Prasad had separated from his father and other brothers as early as in 1942 and had also renounced all his rights in the movable and immovable properties of his father Motilal Kajaria. The relevant portion of the written statement of the grand mother of Defendant No. 5 reads as follows: b) The Defendant Nos. 1, 2, 3 and 4 are the sons of this Defendant and Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.01.2005, seeking a declaration attacking the arbitration award dated 13.09.1956 regarding the partition of the property and claiming right in the suit property. 13. On 13.09.2008, the learned Single Judge dismissed the application. However, the intra-court appeal filed by Defendant Nos. 5 and 12 was allowed by the Division Bench of the High Court and hence these appeals. 14. The Division Bench in the impugned judgment has taken the view that the rejection of the application for amendment would result in failure of justice and would cause irreparable injury to Defendant Nos. 5 and 12. According to the Division Bench, in the impugned Judgment: In our view, there was no justification of denying such an opportunity to the Appellants to prove the amended version on the ground of mere delay, the effect of which will be, to unjustly permit the opposing Defendants to reap the benefit of an apparent admission, which is not conclusive proof of the fact contained in the pleading in accordance with the law of the land, and which may not be true. Moreover, for considering the question whether the amendment is a malafide one, we cannot lose sight of the fact it is not even the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes and differences arose between the heirs and legal representatives of Late Motilal Kajaria in respect of immovable properties left by my said grand father which disputes were referred to an arbitration of Dulichand Kheria, Sheo Prasad Patodia and Ramnath Kanoria and in the said Arbitration Proceedings my mother Smt. Giniya Devi Kajaria Defendant No. 12 herein made a declaration in writing on 25th February, 1956 before the Arbitrators stating that my Late father Mahabir Prasad Kajaria separated himself from father and his brothers in food, estate and business and renounced the right, title and interest in the joint immovable property in favour of his brothers and father. A copy of the said declaration dated 25th February, 1956 of my mother Smt. Giniya Devi Kajaria Defendant No. 12 herein addressed to the Arbitrators is enclosed herewith and marked with letter A . 5. I state and submit that the petition is not maintainable and should be dismissed with cost. 6. With reference to paragraph 20 of the said petition I deny that I have got 2.78% in the said premises No. 6, Russel Street, Calcutta as alleged or at all which will also appear from the Registered Award dated 13th Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 jurisdiction for a reason which is untenable ought not to have interfered with the order made 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 Sushil Kumar Jain v. Manoj Kumar and Anr. (2009) 14 SCC 38. The case pertained to eviction proceedings. The original stand taken by the tenant was that there wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in Revajeetu Builders and Developers v. Narayanaswamy and Sons and Ors. (2009) 10 SCC 84, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mise, 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. 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) 24. 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 ..... 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