Sikander Parvez vs Mrs. Razia Parvez & others

MANOJ K. TIWARI, J. (ORAL)

By means of this petition, petitioner has challenged the order dated 05.09.2016 passed by learned trial court, whereby his application seeking leave

to amend the written statement, has been rejected.

Petitioner is defendant No. 1 in a suit for partition and rendition of accounts, which is registered as Original Suit No. 357 of 2006 and is pending

before 3rd Additional Civil Judge (S.D.), Dehradun. As per plaint allegation, predecessor in interest of plaintiff â€" Gulshan Parvez and defendant No.

1 are real brothers, while defendant No. 2 is the sister of the predecessor in interest of plaintiffs. It was further contended that predecessor in interest

of plaintiffs and defendant No. 1 were co-sharers and were having half share over the suit property numbered as 230 and 230A, Rajpura Road,

Dehradun.

Defendant No. 1 (petitioner herein) filed a written statement before the trial court and in para 16 whereof it was stated that father of predecessor in

interest of the plaintiffs, namely, (Gulshan Parvez) and defendant No. 1 had distributed the suit property amongst his children through Oral Gift and the

suit property bearing Nos. 230 and 230A, Rajpura Road, Dehradun came to the share of Mr. Gulshan Parvez and Mr. Sikander Parvez (defendant

No. 1/petitioner herein). Thus, it was admitted by defendant No. 1 that suit property came to the share of both the brothers i.e. predecessor in interest

of the plaintiffs and defendant No. 1. In para 24 of the written statement, respondent No. 1 further pleaded that on 01.03.1991, predecessor in interest

of the plaintiffs gifted the entire suit property, except one Kothi gifted to his sister in 1980 and one Red Kothi to the defendant No. 1 and he also

executed a memorandum to this effect on 01.03.1991.

This written statement was filed by defendant No. 1 in the month of September, 2006. After nearly ten years, defendant No. 1 moved an

application under Order 6 Rule 17 C.P.C. seeking leave to amend his written statement on the ground that on 06.03.2016, while inspecting the

storeroom, he came across some document, kept in iron box and through that document he came to know that the entire suit property was gifted in his

favour by his father Late Sri Sheikh Anwar-Ul-Haq, who also executed a memorandum of oral gift on 06.01.1958.

Learned court below rejected the said amendment application vide order dated 05.09.2016, which is under challenge in the present writ petition.

Heard learned counsel for the parties and perused the record.

Sri Siddhartha Singh, learned counsel for the petitioner vehemently argued that the learned court below has accepted the memorandum of gift deed

dated 06.01.1958 on record, which is the basis of his amendment application, therefore, rejection of amendment application is unsustainable as in the

absence of pleading, a document cannot be proved and relied upon.

Sri Piyush Garg, learned counsel for the respondents submits that filing of document is one thing and prove or disapprove of document is another

thing. Learned trial court has merely taken the document on record, which does not confer any right in favour of the petitioner.

Merely because, learned trial court has accepted the memorandum of gift deed on record does not mean that the amendment application, moved by

the petitioner based on the said document, also needs to be allowed.

I have gone through the order impugned in the writ petition. Learned court below has given cogent reasons for rejecting the amendment

application. It has been held that the admission can’t be withdrawn through amendment in the pleading.

In fact, defendant No. 1 has sought to withdraw a categorical admission made in para 16 of his written statement. In para 16 of the written

statement, there is a categorical admission that both brothers i.e. Mr. Gulshan Parvez and Mr. Sikendra Parvez (petitioner herein) became owner of

the suit property through an oral gift, which has been sought to be withdrawn through this amendment. By prayer-A in the amendment application,

defendant No. 1 had sought to add the expression that “before 06.03.2016 he was under the false impressionâ€, in para No. 16 of his written

statement which has the effect of retracting what he has stated in the written statement.

It is settled position in law that an admission made in the pleadings cannot be withdrawn. Law on this aspect has been clarified by Hon’ble

Supreme Court in Ram

Niranjan Kajaria Vs Sheo Prakash Kajaria & others reported in (2015) 10 SCC 203. Para 23 of the said judgment is extracted below:-

“23. We agree with the position in Nagindas Ramdas {(1947) 1 SCC 242} and as endorsed in Gautam Sarup {(2008) 7 SCC 1985} 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 in Panchdeo Narain Srivastava (1984 Supp. SCC 594), does not reflect the correct legal position and it is

overruledâ€​

In such view of the matter, there is no scope of interference with the order impugned in the writ petition. The writ petition is, therefore, liable to be

dismissed and is hereby dismissed.

No order as to costs.