Supreme Court of India
GAUTAM SARUPversusLEELA JETLY AND ORS.
- Citation
- 2008 INSC 322
- Decided
- 7 March 2008
- Disposal
- Case Allowed
- Bench
- S B SINHA
Holding
A categorical admission in a pleading is binding pro proprio vigore and cannot be withdrawn; amendment to rescind such admission is not permissible.
Summary
Gautam Sarup filed a suit to declare his title to property bequeathed to him by a will and to obtain a permanent injunction. Respondent No.6, Leela Jetly, initially filed a written statement admitting the plaintiff's claims, but later denied having signed that statement and sought to withdraw it by filing a second written statement. The trial court allowed the withdrawal; the High Court set aside that order, held that the admission was binding, and again allowed amendment. The Supreme Court held that an admission made in a pleading is binding pro proprio vigore and cannot be resiled from; it may only be explained or clarified, not withdrawn. Consequently, the amendment to withdraw the admission was impermissible and the appellate court set aside the lower courts' orders, allowing the appeal.
Issues considered
- Whether an admission made in a pleading (written statement) is binding and cannot be withdrawn under Section 58 of the Evidence Act and Order VIII Rule 5 CPC.
- Whether a party may amend a written statement to rescind a categorical admission under Order VI Rule 17 of the CPC.
- Whether the trial court and High Court erred in permitting the amendment despite the admission being pro proprio vigore.
- Whether the amendment would cause prejudice to the plaintiff and affect the determination of the suit.
Legislation cited
- Code of Civil Procedure, 1908s. Order 8 r.5, s. Order VIII Rule 5, s. Order VI Rule 17
- Indian Evidence Act, 1872s. 58
Subjects
admissionpleadingamendmentwritten statementEvidence ActCivil Procedure Coderesilewillprobatecivil suit
Judgment
[2008] 4 S.C.R. 523
.....
GAUTAM SARUP A
v.
LEELA JETLY AND ORS.
(Civil Appeal No. 1808 of 2008)
MARCH 7, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Evidence Act, 1872:
~ s.58-Admission made by a party to the /is-Admissibility
of - Held: Admissible against him proprio vigore - A C
categorical admission cannot be resiled from but it may be
explained or clarified - It is permissible to take an alternative
plea, however, it should not be mutually destructive - Code of
Civil Procedure, 1908 - Order 8 r. 5.
D
Admission made in a pleading - Not same as admission
in a document.
;
Code of Civil Procedure, 1908 :
06 r.11-Amendment of written statement- Respondent
no. 6 filing written statement accepting the claim of appellant E
in its entirety - Subsequently resiting from it stating that the
written statement was not filed by her and signature on it were
not hers - Failure on her part to prove so -Application by her
seeking amendment of written statement - Permissibility of -
Held: Not permissible - Only explanation which could be F
.,.. offered by her was that the purported admission had been
..., _, taken from her by playing fraud on her and she, therefore, was
not bound thereby - As such explanation not offered,
application for amendment of written statement wrongly allowed
by Courts below. G
The testator bequeathed his properties in favour the
appellant and respondent no.7. Appellant filed a suit for
declaration of his title to the properties and for decree of
523 H
524 SUPREME COURT REPORTS , [2008] 4 S.C.R. ~ )
A permanent injunction. Respondent No.6 on being served
with the summons appeared through MPV, Advocate. She
filed a written statement admitting the averments made in ~
the plaint. She,, however, filed another written statement
denying and disputing the claim of the appellant in toto.,
B She also filed an application on 28.8.2000 for permission
to take the first written statement off the records and to
file another written statement on the premise that she had
. not engaged MPV, Advocate nor filed ariy written
c
statement through him. She denied her signatures
appearing on the said written statement. The said
. ,, .
application was allowed by the trial court. Appellant filed
revision wherein High Court while setting aside the order
of trial court directed it to hold an enquiry as to whether
the respondent no.6 ever engaged MPV, Advocate or ever
o signed the written statement which had been placed on
record. It was directed that in the event the findings of the
said enquiry go· in her favour, it would be open to her to
file the second written statement or the one which has
been filed by her may be accepted. Pursuant thereto, ~
E enquiry was held and it was opined that respondent no.6
had, in fact, appointed the said MPV as her lawyer and
filed her written statement on 30.3.2000. This order was
upheld by High Court.
Thereafter, Respondent no.6 filed an applica~ion for
F amendment which was allowed by trial Court and affirmed
by High Court. Hence the 'present appeal.
Allowing the appeal, the Court
HELD: 1.1. An admission made in a pleading is not
G to be treated in the same manner as an admission in a
document. An admission made by a party to the lis is
admissible against him proprio vigore. [Para 13) [530-E]
State of Haryana and Ors. v. M.P Moh/a (2007) 1 SCC
H 457 - referred to, ., ·
\ ~
GAUTAM SARUP v. LEELA JETLY AND ORS. 525
1.2. A thing admitted in view of s.58 of the Indian A
Evidence Act need not be proved. Order VIII Rule 5 CPC
provides that even a vague or evasive denial may be
treated to be an admission in which event the court may
pass a decree in favour of the plaintiff. It is one thing to
say that without resiling from an admission, it would be B
permissible to explain under what circumstances the
same had been made or it was made under a mistaken
belief or to clarify one's stand in regard to the extent or
• ,. effect of such admission, but it is another thing to say
that a person can be permitted to totally resile therefrom. c
[Para 15) [530-G-H; 531-A-B]
Modi Spinning and Weaving Mills Co.Ltd. and Anr. v.
Ladha Ram and Co. (1976) 4 SCC 320; Panchdeo Rarain
Srivastava v. Km. Jyoti Sahay and Anr. (1984) Supp. SCC
594; Akshaya Restaurant v. P. Anjanappa and Anr. (1995) D
Supp. 2 SCC 303;Basavan Jaggu Dhobi v. Sukhnanndan
Ramdas Chaudhary (1995) Supp. 3 179; Heeralal v. Kalyan
.., Mal and Ors. (1998) 1 SCC 278; Sangramsinh P. Gaekwar
and Ors. v. Shantadevi P. Gaekwad (Dead) through Lrs. and
Ors. (2005) 11 SCC 314; Union of India v. Pramod Gupta E
(Dead) by LRs. and Ors. (2005) 12 SCC 1; Punjab National
Bank v. Indian Bank and Anr. (2003) 6 SCG 79; Rajesh Kumar
Aggarwal and Ors. v. K.K. Modi and Ors. (2006) 4 SCC 385;
Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami
and Ors. (2007) 5 SCC 602 - referred to. F
> 1.3. A categorical admission cannot be resiled from
but, in a given case, it may be explained or clarified.
Offering explanation in regard to an admission or
explaining away the same, however, would depend upon
the nature and character thereof. It may be that a defendant G
is entitled to take an alternative plea. Such alternative
pleas, however, cannot be mutually destructive of each
other. An explanation can be offered provided there is any
scope therefor. A clarification may be made where the
" same is needed. [Paras 22, 23) [536-H; 537-A-B] H
526 SUPREME COURT REPORTS [2008] 4 S.C.R.
A 2.1. Respondent No.6 accepted the case of the
appellant in its entirety. It went to the extent of accepting
the plea of the appellant that his suit, claiming half share
in the property left by his father, may be decreed. Each
and every contention of the plaintiff-appellant was
B accepted by respondent no.6. The only explanation which
could be offered by her was that the purported admission
had been taken from her by playing fraud on her and she,
therefore, was not bound thereby. If, she had not engaged
MPV as her advocate or had not put her signature on the
c written statement, the purported contention contained in
her written statement filed on 30.3.2000 might not
constitute 'admission' in the eyes of law. In such a
situation in law, she must be held to have not filed any
written statement at all. It was bound to be taken off the
o records and substituted by a written statement which was
properly and legally filed. Such a contention raised on the
part of respondent No.6 having been rejected by the Trial
Judge as also be the High Court, the submission that she
should be permitted to explain her admissions does not
E and cannot arise. [Paras 24-25) [537-D-G]
2.2. It is not correct to say that other respondents
having denied and disputed the genuineness of the Will
and an issue in that behalf having been framed, the
appellant in no way shall be prejudiced if the amendment
F of the written statement be allowed. [Para 26) [538-A-B]
Dondapati Narayana Reddy v. Duggireddy
Venkatanaryana Reddy and Ors. (2001) 8 SCC 115 -
Distinguished.
G CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1808 of 2008 .
.
From the final Judgment arid Order dated 25.07.2006 of
the High Court of Punjab and Haryana at Chandigarh in Civil ,._
H Revision No. 2069 of 2005.
l~
GAUTAM SARUP v. LEELA JETLY AND ORS. 527
[S.B. SiNHA. J ;
.. i
Sudhir Chandra. Bhagwati Prasad Padhi, D.K. Monga and
S.K. Sabharwal for the Appellant.
A
M.L. Verma. Ashok Mathur and Anshul Narayan for the
Respondents.
The Judgment of the Court was delivered by B
S.B. SINHA, J. 1. Leave granted.
~ ~ 2. One Shanti Sarup executed a Will. Respondents 1, 2. 3
and 6 are his daughters. Respondent No. 7 Ritu Sarup is the
daughter of Respondent No. 2. She had an accidental fall and c
became handicapped.
3. The Will was executed on or about 23.9.1999
bequeathing his properties in equal shares to the appellant and
the said Ritu Sarup.
0
4 Appellant filed a suit in the Court of Civil Judge (Senior
Division). Ludhiana, inter alia, for declaration of his title to the
suit properties and for a decree of permanent injunction.
Respondent No. 6 Leela Jetlley, on being served with the
summons appeared through one Shri M.P Vasudeva, Advocate. E
She filed a written statement admitting the averments made in
the plaint.
5. A counter claim was filed by Respondent Nos. 1 to 5. In
their written statement, they did not deny or dispute execution
; of the Will by Shanti Sarup. F
6. Respondent No. 6, however, filed another written
statement denying and disputing the claim of the appellants in
toto. She also filed an application on 28.8.2000 for permission
to take the first written statement off the records and to file G
another written statement on the premise that she had not
engaged the said M.P. Vasudeva. nor had she filed any written
statement through him. She denied and disputed her signatures
appearing on the said written statement. The said application
was allowed by the learned Trial Judge.
H
~J
528 SUPREME COURT REPORTS [2008] 4 S.C.R.
~
A 7. A revision petition was filed by the appellant
thereagainst. By a judgment and order dated 15.3.2002, the
+ -
High Court, while setting aside the said order of the learned
Trial Judge dated 12.9.2001 directed it to hold an enquiry at the
first instance as to whether the respondent No. 6 ever engaged
B Mr. Vasudeva, Advocate or ever signed the written statement
which had been placed on record. It was directed that in the
event the findings of the said enquiry go in her favour, it will be
open to her to file the second written statement or the one which 1
"
has been filed by her may be accepted. It was, however,
c observed:
Of course, I am not depriving Smt. Jetly to file an application
under Order VI Rule 17 CPC in case the findings are
given against Smt. Leela Jetly regarding filing of earlier
statement.
D
8. Pursuant to or in furtherance of the said direction, an
enquiry was held and it was opined that respondent No. 6 had, ...
in fact, appointed the said Shri Vasudeva as her lawyer and
filed her written statement on 30.3.2000. A revision application
was filed thereagainst by the respondent No. 6 which by reason
E
of an order dated 7.4.2004, was dismissed by the High Court.
9. An application for amendment was thereafter filed by
her on 5.11.2004 which was allowed by the learned Trial Court
by an order dated 23.2.2005. Appellant moved the High Court
F invoking its revisional jurisdiction and by reason of the impugned ...
judgment the same was dismissed opining:
"Thus, I am of the opinion that the plaintiff is not prejudiced
in any manner while allowing defendant No. 6 to amend
the written statement. The burden of proving the Will is to
G be discharged by the plaintiff in any case. Whether
admissions contained in the written statement dated
30.3.2000 were relevant for proof of Will or such
A,
admissions were made erroneously or under mistaken
belief or misrepresentation or such admissions are
H conclusive, are the questions which can be decided only
GAUTAM SARUP v. LEELA JET:..Y AND ORS. 529
[S.S. SINHA, J.]
after defendant No. 6 is permitted to amend the written A
statement. It is a disputed question of fact which cannot
be decided at the stage of deciding the applicat:on for
amendment of written statement whether admissions 1n
the written statement dated 30.3.2000 are corclusive and
binding on defendant No. 6 and to what extent. B
10. Mr. Sudhir Chandra, learned senior counsel appearing
-. t on behalf of the appellant, would submit:
1. Respondent No. 6, in view of admissions contained
in her written statement filed on 30.3.2000 , could c
not have been permitted to resile therefrom
2. She, having failed in her attempt to set up a plea that
she had not engaged Shri Vasudeva as a lawyer
and did not put her signature on the wr!tten statement,
should not have been permitted to amend the written D
statement, in view of the fact that she was an attesting
witness to the Will and claimed a benefit thereunder.
11. Mr. M.L Verma, learned senior counsel appearing on
behalf of Respor.dent No. 6, on the other hand, submitted.
E
(a) Admission being an evidence against a person
mak:ng the same, the onus would be on him to show
that it was made under some mistake or otherwise
and, thus, the amendment of written statement is
- >
(b)
permissible in law.
Apart from Respondent No. 6, six other defendants
F
had denied or disputed the correctness of the Will
pursuant whereto an issue was framed and as such
the question as to whether she made any admission
in her first written statement or not is wholly academic. G
(c) Although a person making admission should '1ot
ordinarily be permitted to resile therefrom, there does
not exist any bar to explain such admission or clarify
the same and in that view of the matter such portion
H
530 SUPREME COURT REPORTS [2008] 4 S.C.R.
A of the application for amendment of written statement,
which seeks to explain the admission and/or clarify
the same should be permitted to be retained.
12. Order VI Rule 17 of the Code of Civil Procedure reads,
thus:
B
17. Amendment of pleadings- The Court may at any
stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made
c as may be necessary for the purpose of determining the
real questions in controversy between the parties: t"--
Provided that no application for amendment shall be
allowed after the trial has commenced, unless the Court
comes to the conclusion that is spite of due diligence, the
D party could not have raised the matter before the
commencement of trial.
13. An admission made in a pleading is not to be treated
in the same manner as an admission in a document. An
E admission made by a party to the lis is admissible against him
proprio vigore.
14. In State of Haryana and Ors. v. M.P Moh/a [(2007) 1
SCC 457] this Court stated:
"25. The law as regards the effect of an admission is also
F no longer res integra. Whereas a party may not be
permitted to resile from his admission at a subsequent
stage of the same proceedings, it is also trite that an
admission made contrary to law shall not be binding on
the State."
G
15. A thing admitted in view of Section 58 of the Indian
Evidence Act need not be proved. Order VIII Rule 5 of the Code
of Civil Procedure provides that even a vague or evasive denial
may be treated to be an admission in which event the court may
H pass a decree in favour of the plaintiff. Relying on or on the
{~
GAUTAM SARUP v. LEELA JETLY AND ORS. 531
[S.B. SINHA, J.]
,, ~
basis thereof a suit. having regard to the provisions of Order XI: A
Rule 6 of the Code of Civil Procedure may also be decreed on
admission. It is one thing to say that without resiling from an
admission. it would be permissible to explain under what
circumstances the same had been made or it was made under
a mistaken belief or to clarify one's stand inter alia' in regard to B
the extent or effect of such admission, but it is another thing to
say that a person can be permitted to totally resile therefrom.
The decisions of this Court unfortunately in this regard had
not been uniform. We would notice a few of them.
c
16. A Three Judge Bench of this Court speaking through
Ray, CJ in Modi Spinning & Weaving Mills Co. Ltd. and Anr v.
Ladha Ram & Co. [(1976) 4 SCC 320] opined:
"10. It is true that inconsistent pleas can be made in
pleadings but the effect of substitution of paras 25 and 26 D
is not making inconsistent and alternative pleadings but it
is seeking to displace the plaintiff completely from the
admissions made by the defendants in the written
statement. If such amendments are allowed the plaintiff
will be irretrievably prejudiced by being denied the E
opportunity of extracting the admission from the
defendants. The High Court rightly rejected the application
for amendment and agreed with the trial court."
17. A Two Judge Bench of this Court, without noticing the
1 binding precedent in Modi Spinning (supra), in Panchdeo F
Rarain Srivastava v. Km. Jyoti Sahay and Anr 1984 Supp.
sec 594, stated:
"But the learned Counsel for the respondents contended
that by the device of amendment a very important
G
admission is being withdrawn. An admission made by a
party may be withdrawn or may be explained away.
Therefore. it cannot be said that by amendment an
admission of fact cannot be withdrawn."
Yet again, in Akshaya Restaurant v. P Anjanappa and H
532 SUPREME COURT REPORTS [2008] 4 S.C.R.
A Anr. 1995 Supp.(2) SCC 303, the following observations were
made by the Court: ~ ._
"We ~ind no force in the contention. It is settled law that
even the admission can be explained and even
:nconsistent pleas could be taken in the pleadings. It is
B
seen that in para 6 of the written statement a definite
stand was taken by subsequently in the application for
amendment it was sought to be modified as indicated in
the petition. In that view of the matter, we find that there is
no material irregularity committed by the High Court in
c exercising its power under Section 115 CPC in permitting
amendment of the written statement."
[See also Basavan Jaggu Dhabi v. Sukhnandan Ramdas
Chaudhary 1995 Supp. (3)179
D 18. The question came up for consideration before another
Division Bench in Heera/al v. Ka/yan Mal and Ors. [(1998) 1
SCC 278), wherein noticing the aforementioned decisions, Modi
spinning's decision was followed. Akshaya Restaurant (supra)
was held to have been rendered per incuriam.
E Other decisions which were cited at the Bar were
distinguished stating:
"10. Consequently it must be held that when the amendment
sought in the written statement was of such a nature as to
F displace the plaintiffs case it could not be allowed as ruled
by a three-member Bench of this Court. This aspect was A
unfortunately not considered by the latter Bench of two
learned Judges and to the extent to which the latter
decision took a contrary view qua such admission in written
statement, it must be held that it was per incuriam being
G
rendered without being given an opportunity to consider
the binding decision of a three-member Bench of this Court
taking a diametrically opposite view.
"11. We were then taken to another decision of this Court
H in the case of Panchdeo Narain Srivastava v. Jyoti Sahay.
GAUTAM SARUP v. LEELA JETLY AND ORS. 533
[S.B. SINHA, J.]
., In that case the plaintiff was held entitled to amend his A
plaint by submitting that though earlier he stated that the
defendant was uterine brother, the plaintiff by amendment
in his plaint could submit that the defendant was his brother
and the word "uterine" could be dropped. Even in that
case the main case put forward by the plaintiff did not get B
changed as the plaintiff wanted to submit that the defendant
was his brother. Whether he was uterine brother or real
~ brother was a question of degree and depended on the
' nature of evidence that may be led before the Court.
Therefore, the deletion of the word "uterine" was not found c
to be displacing the earlier case of the plaintiff. On the
facts of the present case also, therefore, the said decision
cannot be of any assistance to the learned Counsel for the
respondents.
12. In our view, therefore, on the facts of this case and as D
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." E
19. Hiralal (supra) has been recently noticed by this Court
in Sangramsinh P Gaekwar and Ors. v. Shantadevi P Gaekwad
(Dead) through LRs. and Ors. [(2005) 11 SCC 314], wherein it
is stated:
) F
"215. Admissions made by Respondent 1 were
admissible against her proprio vigore.
216. In Nagindas Ramdas v. Dalpatram /chharam this
Court held:
G
" ... 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
H
534 SUPREME COURT REPORTS [2008] 4 S.C.R.
A 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
B hand, evidentiary admissions which are receivable
at the trial as evidence, are by themselves, not
conclusive. They can be shown to be wrong."
(See also Bishwanath Prasad v. Owarka Prasad.)
c 217. In Viswalakshmi Sasidharan v. Branch Manager,
Syndicate Bank this Court held:
"On the other hand, it is admitted that due to slump
in the market they could not sell the goods, realise
the price of the finished product and pay back the
D loan to the Bank. That admission stands in their way
to plead at the later stage that they suffered loss on
account of the deficiency in service.
218. Judicial admissions by themselves can be made the
foundations of the rights of the parties.
E
Modi spinning (supra) and Hirata/ (supra) were followed
therein.
Yet again in Union of India v. Pramod Gupta (Dead) by
LRs. and Ors. [(2005) 12 SCC 1] this Court held:
F
"Before an amendment can be carried out in terms of
Order 6 Rule 17 of the Code of Civil Procedure the court
-
is required to apply its mind on several factors including
viz. whether by reason of such amendment the claimant
intends to resile from an express admission made by him.
G
In such an event the application for amendment may not
be allowed. (See Modi Spg. & Wvg. Mills Co. Ltd. v.
Ladha Ram & Co., Heera/al v. Ka/yan Mal and
Sangramsinh P Gaekwad v. Shantadevi P Gaekwad )"
H 20. We may, at this stage, notice some decisions of this
( I
GAUTAM SARUP v. LEE~ JETLY AND ORS. 535
[S.B. SiNHA. J.]
... Court whereupon strong reliance has been placed by Mr. Verma. A
In Punjab National Bank v. Indian Bank and Anr [(2003)
6 SCC 79), this Court opined that an application for amendment
may be allowed to clarify the relief which had been prayed for
even in the plaint, particularly, when no prejudice in this behalf
would be caused to the other party to the !is. B
In Rajesh Kumar Aggarwal and Ors. v. K. K. Modi and Ors.
[(2006) 4 sec 385), while emphasizing on the underlined
principles of Order VI Rule 17 of the Code of Civil Procedure, it
was held: c
"15. The object of the rule is that the courts should try the
merits of the case that come before them and should,
consequently, allow all amendments that may be necessary
for determining the real question in controversy between
the parties provided it does not cause injustice or prejudice D
to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the
first part is discretionary (may) and leaves it to the court
to order amendment of pleading. The second part is
imperative (shall) and enjoins the court to allow all E
amendments which are necessary for the purpose of
determining the real question in controversy between the
parties.
J 17. In our view, since the cause of action arose during the F
pendency of the suit, proposed amendment ought to have
been granted because the basic structure of the suit has
not changed and that there was merely change in the nature
of relief claimed. We fail to understand if it is permissible
for the appellants to file an independent suit, why the same G
relief which could be prayed for in the new suit cannot be
permitted to be incorporated in the pending suit.
xxx xxx xxx
20 .... The court always gives leave to amend the pleadings H
f }
536 SUPREME COURT REPORTS [2008] 4 S.C.R.
A' of a party unless it is satisfied that the party applying was
acting mala fide. There is a plethora of precedents
pertaining to the grant or refusal of permission for
amendment of pleadings. The various decisions rendered
by this Court and the proposition laid down therein are
B widely known. This Court has consistently held that the
amendment to pleading should be liberally allowed since
procedural obstacles ought not to impede the dispensation
of justice." ,
These decisions for the reasons stated supra are not
c applicable in the instant case.
21. Recently, in Usha Ba/ashaheb Swami and Ors. v. Kiran
Appaso Swami and Ors. [(2007) 5 SCC 602], this Court
observed:
D "26. Therefore, it was neither a case of withdrawal of
admission made in the written statement nor a case of
washing out admission made by the appellant in the written
statement. As noted herein earlier, by such amendment
..
the appellant had kept the admissions intact and only
E added certain additional facts which need to be proved
by the plaintiff and Defendants 2 to 8 to get shares in the
suit properties alleged to have been admitted by the
appellants in their written statement. Accordingly, we are
of the view that the appellants are only raising an issue
F regarding the legitimacy of the plaintiff and Defendants 3
to 7 to inherit the suit properties as heirs and legal l
representatives of the deceased Appasao. Therefore, it
must be held that in view of our discussions made
hereinabove, the High Court was not justified in reversing
the order of the trial court and rejecting the application for
G
amendment of the written statement."
22. What, therefore, emerges from the discussions made
hereinbefore is that a categorical admission cannot be resiled ~
from but, in a given case, it may be explained or clarified. Offering
H explanation in regard to an admission or explaining away the
GAUTAM SARUP v. LEELA JETLY AND ORS. 537
[S.S. SINHA, J.]
same, however. would depend upon the nature and character A
.,
thereof. It may be that a defendant is entitled to take an alternative
plea. Such alternative pleas, however, cannot be mutually
destructive of each otheL
23. An explar.ation can be offered provided there is any
scope therefor. A clarification may be made where the same is 8
needed.
We wiH assume that despite the amendments made by
~
the Code of Civ!I Procedure (Amendment) Act, 1976,
amendment of pleadings being procedural in nature, the same c
should be liberally granted but as in all other cases while
exercising discretion by a the court of law, the same shall be
done judiciously.
24. In this case, respondent No. 6 accepted the case of
the appellant in its entirety. It went to the extent of accepting the D
plea of the appellant that his suit, claiming half share in the
property left by his father, may be decreed. Each and every
" contention of the plaintiff-appellant was accepted by respondent
No. 6. The only explanation which could be offered by her was
that the purported admission had been taken from her by playing E
fraud on her and she, therefore, was not bound thereby.
25. If, she had not engaged Shri Vasudeva as her advocate
or had not put her signature on the written statement, the
purported contention contained in her written statement filed on
30.3.2000 might not constitute 'admission' in the eyes of law. In F
such a situation, in law, she must be held to have not filed any
written statement at all. It was bound to be taken off the records
and substituted by a written statement which was properly and
legally filed. Such a contention raised on the part of respondent
No. 6 having been rejected by the learned Trial Judge as also G
by the High Court, :n our opinion, the submission of Mr. Verma
that she should be permitted to explain her admissions does
)
not and cannot arise.
26. We are herein concerned with her right to maintain an
H
538 SUPREME COURT REPORTS [2008] 4 S.C.R.
A application for an amendment of the written statement when her
second written statement has not been accepted. Submission
..
of Mr. Verma that in any event other respondents having denied
and disputed the genuineness of the Will and an issue in that
behalf having been framed, the appellant in no way shall be
B prejudiced if the amendment of the written statement be allowed
'
cannot be accepted. In support of the said contention, strong
reliance has been placed by Mr. Verma on Oondapati Narayana
Reddy v. Duggireddy Venkatanarayana Reddy and Ors. t
[(2001) 8 SCC 115]. This Court therein was concerned with filing
c of additional written statement. This Court therein was not
concerned with a case where a party to the suit was resiling
from the admissions made by him earlier. In that case, the plaintiff
was claiming title of 113rd share in the property. During the
pendency of the suit, permission was sought for adducing
additional evidence to prove the testamentary succession by
D
producing the registered Will dated 20.8.1984. The said
application was allowed. A revision application filed thereagainst
was also allowed. The first defendant, as a retaliatory measure, r
sought for an amendment questioning the legality of said Will
dated 20.8.1994 which was dismissed. The revision application
E filed thereagainst as also the application for adduction of
additional evidence filed by defendant No. 1 was disposed of
by an order impugned before this Court. It were in the
aforementioned fact situation, it was Court observed:
F "9. Rules governing pleadings and leading of evidence
have been incorporated to advance the interests of justice •
and to avoid multiplicity of litigation. If the claim of the
plaintiff Dondapati Narayana Reddy is based upon the
will dated 20-8-1994 executed by Dondapati Tirumala
Ramareddy, the defendant-appellant has a right to seek
G
the amendment of his written statement incorporating the
plea sought to be introduced by way of proposed
amendment. Such a prayer cannot be denied on
~
hypertechnical grounds. The amendment should, generally,
be allowed unless it is shown that permitting the
H
GAUTAM SARUP v. LEELA JETLY AND ORS. 539
[S.B. SINHA, J.]
- ., amendment would be unjust and resuit in prejudice against
the opposite side which cannot be compensated by costs
A
or would deprive him of a right which has accrued to him
with the lapse of time. Amendment may also be refused,
if such a prayer made separately, is shown to be barred
by time. Neither the triai court nor the High Court has found B
the existence of any of the circumstances justifying the
rejection of the prayer for amendment of the written
statement. Whether or not the amendment is allowed. the
trial court is otherwise obliged to decide the validity of the
disputed will which is the basis of the suit filed by the c
plaintiff. We are of the opinion that the courts below were
not justified in rejecting the prayer of the defendant seeking
amendment of his written statement.
10. In view of the fact that the validity of the will was sought
to be challerged by way of amendment, the plaintiff D
acquired a right to lead evidence to prove its authenticity.
Otherwise also when the basis of the suit was the will
dated 20-8-1994, the interests of justice demanded that
the plaintiff should have been allowed an opportunity to
lead additional evidence to prove its validity." E
The said decision, therefore, is not applicable to the facts
and circumstances of the present case.
27. It may be true that even in this case, the Trial Court
was bound to determine the issue in regard to the validity of the F
Will dated 23.9.1999, but such an issue has not been and car.not
be raised at the instance of respondent No. 6. The decision,
therefore, cannot have any application in the instant case.
28. We, therefore, are of the opinion that in the facts and
circumstances of the case. the impugned judgment cannot be G
sustained. It is set aside accordingly. The Appeal is allowed
with no order as to costs.
D.G. Appeal allowed.
H
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