Gujjar Singh vs Gulzar Singh

G.C. Garg, J.—Gujjar Singh plaintiff has filed this revision against the order of the learned Additional District Judge, Sangrur dated 22nd September, 1990 whereby the application filed by Gulzar Singh one of the defendants for amendment of the written statement was granted subject to payment of Rs. 1000/ as costs.

The plaintiff filed a suit for declaration to the effect that he was owner of 1/4th share of the property in suit being son of Attam Singh. In that suit the plaintiff impleaded Gulzar Singh his brother as defendant No. 1, Baldev Singh, Gurmail Singh and Mohinder Singh as heirs of his two other brothers namely, Amar Singh and Bhajan Singh. All the defendants filed their written statements admitting the plaintiff''s claim. All the defendants except Gulzar Singh ultimately appeared in Court and made their statements admitting the claim. Gulzar Singh ultimately appeared in Court through his counsel on 27th July, 1987. His counsel made a statement on 12th October, 1987 that he did not want to lead any evidence. The suit was, however, dismissed being barred by time by judgment and decree dated 16th October, 1987 by recording an elaborate finding. The plaintiff filed an appeal against the said Judgment and decree. During the pendency of said appeal, Gulzar Singh defendant No. 1 filed an application under Order 6 Rule 17 of the Code of Civil Procedure on 27th August, 1990 for amendment of the written statement as also another application under Order 41 Rule 27 of the Code for permission to lead additional evidence.

The amendment of the written statement was sought on the sole ground that the land in dispute was never owned by Attara Singh the predecessor of the parties and in fact the defendants got this land by means of a preemption decree and that the property owned by Attara Singh which also measured about 280 bighas, as in this case, has already been inherited by all the four sons of Attam Singh in equal shares. This application of Gulzar Singh was contested by the plaintiff on the ground that Gulzar Singh having already filed a written statement admitting the plaintiff''s claim in suit, could not be allowed to amend the written statement, in particular, at the appellate stage and also that Gulzar Singh having not led any evidence, the allowing of the application will prolong the litigation and afford him an opportunity to lead evidence.

The learned Additional District Judge, before whom the appeal was pending, by order dated 22nd September, 1990 allowed the said application subject to payment of Rs. 1000/ as costs and it is against this order that the revision in hand has been preferred by the plaintiff.

The counsel for the petitioner strenuously urged that the defendant Gulzar Singh could not be allowed to amend the written statement whereby he intended to withdraw an admission already made. In support of his submission the counsel placed reliance on Haji Mohammad Ishaq Wd. S.K Mohammed v. Mohammed Iqbal an Mohammed Ali and Co., AIR 1978 SC 798, for the proposition that a party cannot resile from mission already made.

The Supreme Court held as under:

"In our judgment the High Court has rightly refused the prayers of the appellants. The amendment of the written statement sought was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entire new plea which was never taken up either at the time of the dealings between the parties or in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The High Court rightly rejected all those petitions and we need not mention in any detail the reasons thereof."

But in the aforesaid case it was nowhere held by the apex Court that the admission once made cannot be withdrawn. On the other hand, the counsel for the respondent cited a Supreme Court judgment in Panchdeo Narain v. Jyoti, AIR 1983 SC 462, wherein it was ruled that an admission made by a party may be withdrawn or explained away.

In the case in hand, defendant No. 1 Gulzar Singh had sought amendment of the written statement clearly alleging that he was always under the impression that the land in dispute which he got by means of a preemption decree was not the subject matter of that suit as there was slight difference in the areas of the two Khatas and that the property belonging to their father Attara was inherited by all the four branches in equal shares. In somewhat similar situation, this Court had an occasion to deal with this point in Kehar Singh v. Balraj Singh, 1991(2) RRR 306 (P&H) : 1991(1) R.L.R. 223, wherein it was observed thus :

"On a consideration of the matter, I am of the view that this revision deserves to succeed. It is true that Kehar Singh made an admission that defendants 2 to 9 owned 8/9th share in the land, which was subject matter of gifts but it is always open to a party to show that the admission was wrong. If defendants 2 to 9 are the collaterals of an equal degree to the plaintiff, it will be open to them to show the same and if they establish then the plaintiff will fail in spite of amendment. But in case the plaintiff is not given opportunity to back out of the wrong admission, he would not be able to show that the admission was wrong."

Defendant No. 1 Gulzar Singh, in my view, has thus fully explained that the admission earlier made in the written statement was apparently erroneous and on assumed facts and in such a situation a party cannot be refused to amend its pleadings even if it is sought to be done ? At a quite later stage or appellate stage. Thus, I do not find any impropriety illegality or material irregularity in the order allowing the amendment of the written statement.

In the result, there being no merit in the revision, the same is dismissed. No costs.

Since at the time of motion hearing, further proceedings were stayed, the parties have been directed to appear before the Court of Additional District Judge, Sangrur on 27th May, 1991.