HEERALAL versus KALYANMAL AND ORS.

Citation: [1997] SUPP. 5 S.C.R. 277 · Decided: 19-11-1997 · Supreme Court of India · Bench: S.B. MAJMUDAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

HEERALAL 
v. 
KALYANMAL AND ORS. 
NOVEMBER 19, 1997 
[S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.] 
Civil Procedure Code, 1908-0rder VJ Rule 17-Amendment-When 
can be a/lowed-Admission in original written Stalement-Withdrawal-
Allowing of 
Appellant filed a suit for partition in respect of ten immovable properties 
mentioned in Schedule A of the plaint and other properties listed in Schedule 
B of the plaint. The Respondent in their written statement took a stand that 
three properties out of the ten properties listed in Schedule A exclusively 
belonged to them and that they were not joint family properties. They further 
mentioned that the appellant was entitled to partition of only seven out of the 
ten items listed in Schedule A. In respect of Schedule B properties, the 
Respondent claimed that the appellant had no interest therein. 
On the basis of the pleadings, the Trial court framed issues in respect 
A 
B 
c 
D 
of only those three properties of Schedule A which were claimed n~t to be 
joint and in respect of the remaining seven properties, no issue was framed. E 
Several months thereafter, the Respondent No. I moved an application for 
amendment of the written Statement in which it was claimed that the admission 
made in respect of five properties listed in Schedule A was erroneous and 
was caused due to incomplete information supplied to the counsel due to ill 
health of Respondent No. I. In respect of properties mentioned in Schedule F 
B, the Respondent No. I claimed that they had been occupied by trespassers 
and ceased to remain in the possession of Respondent No. I. 
The application for amendment was rejected by the Trial Court. The 
High Court allowed the revision petition filed by the Respondent on the 
ground that an admission may be explained Gr given a go-by in appropriat<: G 
cases. Hence this appeal. 
Partly allowing the appeal, this Court 
HELD: I.I. The order passed by the High court under Section 115 
CPC, allowing withdrawal of earlier admissions of Respondent I and 2 in H 
277 
278 
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R. 
A their original written statement about 5 out of 7 items of Schedule-A 
properties cannot be sustained. 1280-Hi 
1.2 No case was made out by the Respondent for amending the written 
statement and thus attempting to go behind their admission regarding 5 out 
of 7 properties listed in Schedule A of the plaint. So for as Schedule A 
B properties were concerned, a clear admission was made by Respondent I and 
2 in their joint written statement in 1993 that 7 properties out of IO were 
joint family properties wherein the Appellant had I/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 between the parties regarding 7 items of suit 
C properties in Schedule A. [284-C-D; 281-A-B[ 
D 
2. Once 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 
case of the plaintiff and which would cause him irretrievable prejudice. 
[283-C-Dj 
Basavan Jaggu Dhabi v. Sukhnandan Ramdas Chaudhary (Dead) 
through L.Rs and Ors., [1995[ Supp. 3 SCC 179 and Panchadeo Narain 
Srivastava v. Km. Jyoti Sahay and Anr., (1984) Supp. S. 594, distinguished. 
Akshaya Restaurant v. P. Anjanappa and Anr., (1995) 2 SC 303, held 
E per incuriam. 
Modi Spinning & Weaving Mills Co. Ltd & Anr. v. Ladha Ram & Co., 
[ 1977 [ I SCR 728, relied on. 
3. However, so far as Schedule B Properties are concerned, from the 
very inception the respondents' case qua those properties was that Appellant 
F 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 Appellant or 
displaced any admission on their part qua Schedule B properties which 
G might have resulted into any legal right in favour of the Appellant. Therefore, 
so far as Schedule B properties were concerned, the amendment could not 
be found fault with. [284-D-Ej 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7852 of 
1997. 
H 
From the Judgment and Order dated 19.2.97 of the Rajasthan High Court 
HEERA LAL v. KAL YAN MAL [S.B. MAJMUDAR, J.] 
279 
in S.B.C.R. No. 1209of1996. 
Sushi! Kumar Jain, 

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