Holding

An amendment to a written statement that adds a proviso challenging legitimacy does not withdraw the original admission and is permissible under Order 6 Rule 17, so the High Court was wrong to reject it.

Summary

The suit concerned partition of ancestral property where the plaintiff claimed a half‑share. The defendants, in their written statement, admitted the plaintiff’s entitlement but later sought to amend the statement to allege that the plaintiff and certain co‑defendants were illegitimate children and therefore ineligible to inherit. The trial court allowed the amendment; the High Court reversed, holding that the amendment withdrew the admission and would cause irretrievable prejudice. The Supreme Court examined Order 6 Rule 17 of the CPC and held that amendment of a written statement is governed by a liberal approach, that adding a proviso does not withdraw the original admission, and that no serious injustice is caused. Consequently, the High Court’s reversal was erroneous and the amendment was upheld.

Issues considered

The permissibility of amending a written statement to add a new defence challenging the legitimacy of parties under Order 6 Rule 17, CPC.
Whether such amendment amounts to withdrawal of an earlier admission and causes irretrievable prejudice to the plaintiff.
Whether the principles governing amendment of a plaint apply equally to amendment of a written statement.
The relevance of the decisions in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram and Heera Lal v. Kalyan Mal to the present amendment.
The scope of the court’s discretion under Section 115, CPC, in allowing or rejecting amendment applications.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 17, s. Section 115
Hindu Marriage Act, 1955

Subjects

amendment of pleadingswritten statementOrder 6 Rule 17admissionprejudicepartition suitlegitimacyCivil Procedure

Judgment

A USHA BALASAHEB SWAMI AND ORS.
v.
KIRAN APPASOSWAMIANDORS.

APRIL 18, 2007

B [TARUN CHATTERJEE AND R.V. RAVEENDRAN, JJ.]

Code of Civil Procedure, 1908: Order 6 Rule 17.

Amendment ofpleadings-Written statement-Principles to be borne in
C mind-Amendment of written statement and amendment of plaint-Factors
governing grant of permission-The suit properties originally belonged to
one 'V' and on his death 'A ' and 'B' came to inherit the suit properties-
The plaintiffi and he defendants were the legal representatives of 'A ' and 'B'
respectively-The plaintiffi inherited one-half share of the suit properties
D jointly with defendants-Since the defendants had refused to partition the
suit properties and deliver separate possession, the plaintiffi filed the suit for
partition and possession-The defendants filed their written statement in
which they admitted that the plaintiffi were entitled their written statement
in which they admitted that the plaintiffs were entitled to one-half share in
the suit properties-Subsequently, the defendants filed an application for
E amendment of the written statement under Order 6 Rule 17 in which they
sought to add that the plaintiffi could not acquire right, title and interest
in the joint family properties as they were the illegitimate children of the
deceased 'A '-The trial court allowed the application for amendment-But
the High Court held that it was not permissible for the defendants to withdraw
F the admission by an amendment of the written statement as that would
amount to totally displacing the case of the plaintiffi causing irretrievable
prejudice to them-Correctness of-Held: A prayer for amendment of the
plaint and a prayer for amendment of the written statement stand on different
footings-In the case of amendment of a written statement, the courts would
be more liberal in allowing an amendment than that of a plaint as the
G question ofprejudice would be far less fo the former than in the latter case-
Therefore, addition of a new ground of defence or substituting or altering a
defence or taking inconsistent pleas in the written statement would be
permissible-Hence, High Court not justified in rejecting the application for
amendment of the written statement.

H 306
USHABALASAHEBSWAMiv.KJRANAPPASOSWAMI 307
The suit properties originally belonged to one 'V' and on his death 'A' A
and '8' came to inherit the suit properties. The appellants who were
defendants Nos. 8 to 14 in the suit where the heirs and legal representatives
of 'B'. The plaintiffs inherited one-half share of the suit properties jointly
with defendants Nos. 1 to 7, on the death of'A'. Since the appellants had refused
to partition the suit properties and possession. The appellants filed their B
written statement in which they admitted that the plaintiff, with defendant Nos.
1 to 7 was entitled to one-half share in the suit properties.

Subsequently, the appellants filed an application for amendment of the
written statement under Order 6Rule17 of the Code of Civil Procedure, 1908
in which they sought to add that the plaintiff and defendant Nos. 3 to 7 could C
not acquire right, title and interest in the joint family properties as they were
the illegitimate children of the deceased 'A'. The trial court allowed the
application for amendment

The High Court allowed the writ petition filed by the defendant- •
respondent holding that it was not permissible for the appellants to withdraw D
the admission by an amendment of the written statement as that would amount
to totally displacing the case of the plaintiff causing irretrievable prejudice
to him. Hence the appeal.

Allowing the appeal, the Court
E
HELD: 1. From a bare perusal of Order 6 Rule 17 of the Code of Civil
Procedure, 1908, it is clear that the court is conferred with power, at any
stage of the proceedings, to allow alteration and amendments of the pleadings
if it is of the view that such amendments may be necessary for determining
the real question in controversy between the parties. The proviso to Order 6
Rule 17 of the Code, however, provides that no application for amendment shall F
be allowed after the trial has commenced unless the court comes to a
conclusion that in spite of due diligence, the party could not have raised the
matter before the commencement of trial. However, proviso to Order 6 Rule
17 of the Code would not be applicable in the present case, as the trial of the
suit has not yet commenced. [Para 18) (314-D-EJ G
2. It fa now well settled that the courts should be liberal in granting the
prayer for amendment of pleadings unless serious injustice or irreparable
loss is caused to the other side or on the ground that the prayer for amendment
was not a bona fide one. [Para 19) [314-F)
H
308 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Ma Shwe Mya v. Maung Mo Hnaung, AIR (1922) PC 249, referred to

3.1. It is an equally well settled principle that a prayer for amendment
of the plaint and a prayer for amendment of the written statement stand on
different footings. The general principle that amendment of pleadings cannot
be allowed so as to alter materially or substitute cause of action or the nature
B of claim applies to amendments to plaint. It has no counterpart in the principles
relating to amendment of the written statement. Therefore, addition of a new
grou~d of defence or substituting or altering a defence or taking inconsistent
pleas in the written statement would not be objectionable, while adding, altering
or substituting a new cause of action in the plaint may be objectionable.
C (Para 20] (315-B-C]

3.2. Such being the settled law, it must be held that in the case of
amendment of a written statement, the courts are more liberal in allowing an
amendment than that of a plaint as the question of prejudice y•ould be far less
in the former than in the latter case. (Para 21) (315-D)
D
B. K. Narayana Pillai v. Parameswaran Pillai, (2001 J l SCC 712, Balev
Singh v. Manohar Singh, [2006) 6 SCC 498 and Basava Jaggu Dhobi v.
Sukhnandan Ramdas Chaudhary (Dead), (1995) Supp. 3 SCC 179, relied
on.

E Modi Spinning & Weaving Mills Co. Ltd v. Ladha Ram, (1976) 4 SCC
320 and Heera Lal v. Kalyan Mal, [1998) 1 SCC 278, held inapplicable•

•. In allowing the amendment of the written statement a liberal approach
is al neral view when admittedly in the event of allowing the amendment the
other party can be compensated in money. Technically of law should not be
F permitted to hamper the Courts in the administration of justice between the
parties. '(Para 22) (316-B]

L.J Leach and Co. Ltd. v. Jardine Skinner and Co., AIR 11957] SC 357,
relied on.

G 5. This was not a case of withdrawal of the admission by the appellants
by making the application for the amendment of the written statement but in
fact such admission was kept intact and only a proviso has been added. This
is permissible in law and the question of withdrawing the admission made in
its entirely in the facts, therefore, cannot arise at all.
[ (Para 26) (317-G; 318-A)
USHABALASAHEBSWAMI v. KIRAN APPASOSWAMI 309

6.1. The High Court had failed to appreciate that by the proposed A
amendment, the appellants were not withdrawing their admission in respect
of the half-share in the ancestral properly rather they only added that the
plaintiff and defendant Nos. 3 to 8 could be entitled to such share if they proved
to be the legitimate children of' A' (since deceased) who was entitled to balf-
share in the property of late 'V'. That apart, it appears from the record that B
the written statement filed by the appellants was before the death of defendant
No. I (first wife of'A'). After the death of defendant No. 1, when the plaintiff
and defendant Nos. 2 to 8 claimed themselves as heirs and legal
representatives of defendant No. 1, the appellants sought amendment of the
written statement challenging the legitimacy of plaintiff and defendant Nos 2
to 8. It was not impermissible in law for the appellants to seek amendment of C
the written statement in the manner it was sought for. [Para 27) (318-B-DJ

6.2. 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 By such amendment the appellant had kept
the admissions intact and only added certain additional facts which need to be D
proved by the plaintiff alleged to have been admitted by the appellants in their
written statement Accordingly, the appellants are only raising an issue
regarding the legitimacy of the plaintiff and defendant Nos. 3 to 7 inherit the
suit properties as heirs and legal representatives of the deceased 'A'.
Therefore, it must be held that the High Court was not justified in reversing E
the order of the trial court and rejecting the application for amendment of
the written statement [Para 28) (318-F-G]

7. In the present case, the amendment would not displace the case of
the p~aintiff, as it would only help the court to decide whether the respondents
are eligible to the said share in the property on proof of their legitimacy for F
which no irretrievable prejudice would be caused either to the plaintiff or to
defendants Nos. 2 to 8. [Para 29] [320-A-BJ

Akshaya Restaurant v. P. Anjanappa, [1995) Supp. 2 SCC 303, relied
on.
G
Basava Jaggu Dhohi v. Sukhnandan Ramdas Chaudhary (Dead), [1995}
Supp. 3 SCC J 79, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2019 of2007.

From the Judgment and Order dated 03.10.2005 of the High Court of H
310 SUPREME COURT REPORTS (2007] 5 S.C.R.
A Judicature at Bombay in Writ Petition No. 2390of2005.
V.N. Ganpule, Punam Kumari, S.B. Meitei and Naresh Kumar Gaur for the
Appellants.

U.U. Lalit, S.A. Desai, A.S. Desai, Vikann Saluja, A.N. Suryawanshi,
B Venkateswara Rao Anumolu, V.B. Joshi, Pramit Saxena, Prashant Chitmiah and
Yash Pal Dhingra for the Respondents.

The Judgment of the Court was delivered by

TARUN CHATIER.JEE, J. l. Leave granted.
c
2. This appeal is directed against the order dated 3rd October 2005 of
the High Court of Judicature at Bombay in Writ Petition No 2390 of 2005
whereby the order passed by the Civil Judge, Senior Division, Kolhapur in
Special Civil Suit No. 503 of 1996 was set aside.

D 3. The plaintiff, who is the respondent no. l in the present appeal,
(hereinafter called the "plaintiff') has instituted a suit for partition and separate
possession of the suit properties as fully described in Para l of the plaint on
the allegations stated in brief as follows :-

4. The suit properties originally belonged to one Veersangayya (since
E deceased). On his death, Appasao (since deceased) and Balasao (since
deceased) came to inherit the suit properties. The appellants who are
defendants 8 to 14 in the suit are the heirs and legal representatives of
Balasao (since deceased). The Plaintiff inherited one half share of the suit
properties jointly with defendant nos. 1 to 7, on the death of Appasao. Since
F the appellants had refused to partition the suit properties and deliver separate
possession, the plaintiff filed the suit for partition and possession.

5. The defendant nos. 1 to 7 who are respondent nos. 2 to 8 in this
appeal entered appearance in the suit and filed their written statement
supporting the case of the plaintiff. After entering appearance in the suit, the
G appellants on 28th February, 2003 filed their written statement in which they
admitted that the plaintiff with defendant No. I to 7 were entitled to one half
share in the suit properties.

6. Initially, an application for amendment of the written statement was
filed by the appellants on 18th June, 2003, which was contested by the
H plaintiff. The said application was allowed by the Civil Judge, Senior Division,
USHA BALASAHEB SWAMI v. KIRAN APPASO SWAMI [TARUN CHATIERJEE, J.] 311

Kolhapur, but subsequently on a writ application filed before the High Court A
at the instance of the plaintiff, the order allowing amendment was set aside
and the application for amendment was rejected. However, liberty was given
to the appellants to file a fresh application for amendment of the written
statement.

7. Pursuant to such liberty, a fresh application for amendment of the B
written statement was filed on 12th March, 2004 by the appellants, which was
also contested by the plaintiff.

8. In the application for amendment of the written statement the appellants
had sought to add that the plaintiff and defendant Nos.2 to 7 could not
acquire right, title and interest in the joint family properties, as they were the C
illegitimate children of the deceased Appasao. In the application for amendment,
the appellants sought to allege that Appasao (since deceased) was initially
married to defendant no. l. As she had no issue, the said Appasao took
defendant No.2 as his second wife after coming into force of the Hindu
Marriage Act, 1955. The appellants alleged that since the marriage between D
Appasao and defendant No.2 was a nullity, neither defendant No.2 nor the
plaintiff and defendant Nos. 3 to 7 were entitled to claim any share in the suit
properties.

9. The plaintiff contested the application for amendment of the written
statement by filing a written objection in which the plaintiff mainly sought E
rejection of the amendment of the written statement on the ground that since
the appellants in their written statement had admitted that the plaintiff and
defendant Nos. I to 7 were jointly entitled to half share of the suit properties,
they could not be pennitted to withdraw such admission by amendment of the
written statement.
F
l 0. The learned Civil Judge, Senior Division, Kolhapur allowed the
application for amendment of the written statement and the matter was carried
in revision by the plaintiff by a writ petition before the High Court. The High
Court, by the impugned order, had set aside the order of the trial court and
rejected the application for amendment of the written statement, inter alia, on G
the ground that since the appellants had categorically admitted in their written
statement that the respondents were entitled to half share in the suit properties,
it was not permissible for them to withdraw such admission by an amendment
· of the written statement as that will amount to totally displacing the case of
the plaintiff causing irretrievable prejudice to him.
H
312 SUPREME COURT REPORTS [2007] 5 S.C.R.

A l l. In order to come to this conclusion, the High Court relied on a
decision of this Court in the case of Modi Spinning & Weaving Mills Co. Ltd.
v. Ladha Ram & Co., [1976] 4 SCC 320. According to the High Court, the
decision in the case of Modi Spinning & Weaving Mills Co. Ltd (supra) was
a clear authority for the proposition that once a written statement contained
B an admission in favour of the plaintiff, by amendment, such an admission of
the defendants, cannot be withdrawn and if allowed, it would amount to
totally displacing the case of the plaintiff, causing irretrievable prejudice to
him. Similarly relying on another decision of this Court in the case of Heera
Lal v. Kalyan Mal & Ors., [ 1998] l SCC 278, the High Court held that the
amendment, if allowed, would displace the case of the plaintiff and his right
C to get the partition decree and, therefore, amendment was impermissible in
law.

12. Dissatisfied with this order of the High Court, this Special Leave
Petition has been filed in respect of which leave has already been granted.

D 13. On behalf of the appellants, Mr. V.N. Ganpule, learned senior counsel
contended, at the first instance, that the question of withdrawing admission
made in written statement could not arise as the appellants even after the
amendment, have kept the "admission" made in para 8 intact but only have
added certain additional facts which need to be proved by the plaintiff and
E defendant nos. 1 to 7 to get their respective shares in the suit properties
alleged to have been admitted by the appellants in the written statement.
Secondly, it was contended that even assuming that by such amendment,
appellants sought to withdraw the admission made by them in para 8 of the
written statement then also the High Court was grossly in error rejecting the
application for amendment of the written statement because by such
F amendment, the appellants had only sought to explain such admissions or in
any case, the amendment would only amount to raising an inconsistent plea
which is permissible in law in the case of amendment of written statement. In
support of this contention, reliance was placed by Mr. Ganpule on the case
of Baldev Singh & Ors. v. Manohar Singh, [2006] 6 SCC 498. It was also
submitted by Mr. Ganpule that the High Court also fell in error in relying on
G the decision of this Court in the case of Modi Spinning & Weaving Mills Co.
Ltd. (supra) as the said decision, in fact advances and supports the case of
the appellants. Finally it was argued that since the trial court has allowed the
amendment in its discretion, the High Court was not justified in reversing the
discretionary order of the trial court in the exercise of its supervisory jurisdiction
H under Article 227.
USHABALASAHEBSWAMI v. KlRANAPPASOSWAMI [TARUNCHATIERJEE,J.J 313

14. The aforesaid submissions of the Learned Senior Counsel appearing A
for the appellants were contested by the Learned Senior Counsel Mr. Udey
Lalit, appearing for the plaintiff. Mr. Lalit has contended that clear admissions
made by the appellants in their written statement admitting the rights of the
plaintiff cannot be allowed to be. withdrawn by amendment of the written
statement as that would amount to totally displacing the case of the plaintiff
and cause the plaintiff irretrievable prejudice. In support of this contention, B
Mr. Lalit also relied on the decision of this court in the case of Modi Spinning
& Weaving Mills Co. Ltd (supra) which was relied on by the High Court while
rejecting the application for amendment of the written statement. He strongly
contended that if such amendment was allowed, admissions made by the
appellants in Para 8 of their written statement would be entirely washed out C
as a bare perusal of the written statement would clearly show that the appellants
have admitted one-half share of the plaintiff and defendant nos. 1 to 7 in the
suit properties in their written statement. Mr. Lalit also contended that the
decision in Baldev Singh 's case (supra) relied on by the learned counsel for
the appellants in support of his contention would not be applicable in the
facts of this case. Therefore Mr. Lal it contended that the amendment of the D
written statement introducing an entirely different and inconsistent case cannot
be allowed as it would displace the admission made in para 8 of the written
statement and deprive the plaintiff of a valuable right already accrued to him
on account of the admission.
E
15. Relying on the decision in the case of Heera Lal (supra) as relied
on by the High Court in the impugned order, Mr. Lalit contended that the
admission made in para 8 of the written statement cannot be washed out by
an amendment of the written statement. Accordingly, Mr. Lalit invited us to
hold that the High Court was fully justified in rejecting the application for
amendment of written statement of the appellant in the exercise of its power F
under Article 227 of the Constitution.

16. Having heard the rival submissions of the learned counsel for the
parties and after considering the written statement as well as the amendment
of the written statement and the orders passed by the High Court and the trial
court in detail, we are of the view that the High Court had fallen in error in G
rejecting the application for amendment of the written statement.

17. Before dealing with the question whether the amendment sought for
was rightly rejected by the High Court or not, we may first consider the
principles under which amendments of pleadings can be allowed or rejected. G
314 SUPREME COURT REPORTS [2007] 5 S.C.R.

A The principle allowing or rejecting an amendment of the pleadings has
emanated from Order 6 Rule 17 of the Code of Civil Procedure, which runs
as under:

"The Court may at any stage ofthe proceedings allow either party
to alter or amend his pleadings in such manner and on such tenns as
B may be just, and all such amendments shall be made as may be
necessary for the purpose of determining the real questions in
controversy between the parties

Provided that no application for amendment shall be allowed after
the trial has commenced, unless the Court comes to the conclusion
C that in spite of due diligence, the party could not have raised the
matter before the commencement of trial"

(Underlining is ours)

18. From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure,
D it is clear that the court is conferred with power, at any stage of the proceedings,
to allow alteration and amendments of the pleadings if it is of the view that
such amendments may be necessary for detennining the real question in
controversy between the parties. The proviso to Order 6 Rule 17 of the Code, ·
however, provides that no application for amendment shall be allowed after
E the trial has commenced unless the court comes to a conclusion that in spite
of due diligence, the party could not have raised the matter before the
commencement of trial. However, proviso to Order 6 Rule 17 of the Code
would not be applicable in the present case, as the trial of the suit has not
yet commenced.

F 19. It is now well-settled by various decisions of this Court as well as
those by High Courts that the courts should be liberal in granting the prayer
for amendment of pleadings unless serious injustice or irreparable loss is
caused to the other side or on the ground that the prayer for amendment was
not a bonafide one. In this connection, the observation of the Privy Council
in the case of Ma Shwe Mya v. Maung Mo Hnaung, AIR (1922) P.C. 249 may
G be taken note of. The Privy Council observed:

"All rules of courts are nothing but provisions intended to secure
the proper administration of justice and it is, therefore, essential that
they should te made to serve and be subordinate to that purpose, so
that full powers of amendment must be enjoyed and should always
H
USHABALASAHEBSWAMlv. KJRANAPPASOSWAMI[TARUNCHAITERJEE,J.J 315

be liberally exercised, but nonetheless no power has yet been given A
to enable one distinct cause of action to be substituted for another,
nor to change by means of amendment, the subject-matter of the suit."

(Underlining is ours)

20. It is equally well settled principle that a prayer for amendment of the B
plaint and a prayer for amendment of the written statement stand on different
footings. The general principle that amendment of pleadings cannot be allowed
so as to alter materially or substitute cause of action or the nature of claim
applies to amendments to plaint. It has no counterpart in the principles
relating to amendment of the written statement. Therefore, addition of a new
ground of defence or substituting or altering a defence or taking inconsistent C
pleas in the written statement would not be objectionable while adding,
altering or substituting a new cause of action in the plaint may be objectionable.

21. Such being the settled law, we must hold that in the case of
amendment of a written statement, the courts are more liberal in allowing an D
amendment than that of a plaint as the question of prejudice would be far less
in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran
Pillai, [2000] l SCC 712 and Baldev Singh & Ors. v. Manohar Singh, [2006]
6 SCC 498]. Even the decision relied on by the plaintiff in Modi Spinning
(supra) clearly recognises that inconsistent pleas can be taken in the pleadings.
In this context, we may also refer to the decision of this Court in Basavan E
Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead), [1995] Supp 3 SCC
179. In that case, the defendant had initially taken up the stand that he was
a joint tenant along with others. Subsequently, he submitted that he was a
licensee for monetary consideration who was deemed to be a tenant as per
the provisions of Section ISA of the Bombay Rents, Hotel and Lodging F
House Rates Control Act, 1947. This Court held that the defendant could
have validly taken such an inconsistent defence. While allowing the amendment
of the written statement, this Court observed in Basavan Jaggu Dhobi 's case
(supra) as follows :-

"As regards the first contention, we are afraid that the courts below G
have gone wrong in holding that it is not open to the defendant to
amend his statement under Order 6 Rule 17 CPC by taking a contrary
stand than was stated originally in the written statement. This is
opposed to the settled law open to a defendant to take even contrary
stands or contradictory stands, the cause of action is not in any
manner affected. That will apply only to a case of the plaint being H
316 SUPREME COURT REPORTS (2007] 5 S.C.R.

A amended so as to introduce a new cause of action."

22. As we have already noted herein earlier that in allowing the
amendment of the written statement a liberal approach is a general view when
admittedly in the event of allowing the amendment the other party can be
compensated in money. Technicality oflaw should not be pennitted to hamper
B the Courts in the administration of justice between the parties. In the case of
L.J. Leach and Co. Ltd v. Jardine Skinner and Co., AIR (1957) SC 357, this
Court observed "that the Courts are more generous in allowing amendment
of the written statement as the question ofprejudice is less likely to operate
in that event". In that case this Court also held "that the defendant has right
C to take alternative plea in defence which. however, is subject to an exception
that by the proposed amendment the other side should not be subjected to
serious injustice. "

23. Keeping these principles in mind, namely, that in a case of amendment
of a written statement the Courts would be more liberal in allowing than that
D of a plaint as the question of prejudice would be far Jess in the fonner than
in the latter and addition of a new ground of defence or substituting or
altering a defence or talcing inconsistent pleas in the written statement can
also be allowed, we may now proceed to consider whether the High Court was
justified in rejecting the application for amendment of the written statement.

E 24. As noted herein earlier, Mr. Lalit placed strong reliance on the case
of Heera Lal (supra) to contend that the admission made by the appellants
in the original written statement in the facts and circumstances of the case
could not at all be taken away. In our view, the factual position of the case
before us and the facts involved in that decision are different. In Heera La/'s
F case (supra) a definite stand was talcen that the plaintiff had a share in seven
out of the ten scheduled properties as they belonged to the plaintiff and the
defendants I and 2 as joint family properties. However, the defendants moved
an application for amendment of the written statement, which was not allowed
by the trial court. While dealing with this nature of amendment, in that
decision, this Court observed that it was wrong on the part of the High Court
G to assume that by taking an inconsistent stand, the respondents would
prejudicially affect the appellant's case. The Court observed:

"In our view, the order passed by the High Court under Section 115,
CPC, allowing withdrawal of earlier admissions of defendant nos. 1
and 2 in their original written statement about 5 out of 7 items of
H Schedule-A properties cannot be sustained. The reason is obvious.
USHABAlASAHEBSWAMlv. KIRANAPPASOSWAMI [TARUNCHATIERJEE,J.] J 17

So far as Schedule-A properties were concerned, a clear admission A
was made by defendant nos. I and 2 in their joint written statement
in 1993 that 7 properties out of l 0 were joint family properties wherein
the plaintiff had I/3rd share and they had 2/3rd undivided share. Once
such stand was taken, naturally it must be held that there was no
contest between the parties regarding 7 items of suit. properties in
Schedule-A. The learned Trial Judge, therefore was perfectly justified B
in framing Issue No. 2 concerning only remaining three items for
which there was dispute between the parties. In such a situation
under Order XV Rule l of CPC the plaintiff even would have been
justified in requesting the court to pass a preliminary decree forthwith
qua these 7 properties. The said provision lays down that, 'where at C
the first hearing of a suit it appears that the parties are not at issue
on any question of law or of fact, the Court may at once pronounce
the judgment'. Even that apart, the defendant[;-respondent did not
think it fit to move any amendment application for getting out of such
admission till the plaintiff moved an application for appointment of
receiver regarding admitted items of properties. It is only thereafter D
that the application for amendment was moved. Learned Trial Judge
was right when he observed that even the ground made out in the
application were not justified. Consequently, there is no question of
taking inconsistent stand which would not have affected pre-judicially
the plaintiff as wrongly assumed by the High Court." E
25. Keeping the aforesaid observations and also the facts involved in
Heera la/'s case (supra) in _mind, we are of the view that the decision in that
case may not be of any help to respondents.

26. Coming back to the facts of the present case regarding amendment F
of the written statement, we find that the appellants had stated in para 8 of
their original written statement "that plaintiff and defendant nos. I to 7 have
got Y2 share and defendant nos. S to 14 have got Yz share in all the family
properties" and that the maternal aunts have also got share. By seeking
incorporation of paras SA and SB and substitution of para S in the written
statement, the appellants have maintained the admissions made by them in G
para 8 of the written statement but added a proviso or condition to the
admission. Therefore, it was not a case of withdrawal of the admission by the
appellants by making the application for the amendment of the written statement
but in fact such admission was kept intact and only a proviso has been
added. This, in our view, is permissible in law and the question of withdrawing H

..

-l
318 SUPREME COURT REPORTS (2007] 5 S.C.R.

A the admission made in para 8 in its entirety in the facts as noted herein above,
therefore, cannot arise at all.

27. Since we have already h~ld that in the case of amendment of a
written statement, the defendant is entitled to take new defence and also to
plead inconsistent stand and in view of our discussions made herein above
B that by making the application for amendment of the written statement,
admission was not at all withdrawn by the appellants nor a totally inconsistent
plea was taken by the appellants in their application for amendment of the
written statement, the High Court had failed to appreciate that by the proposed
amendment, the appellants were not withdrawing their admission in respect
C of the half share in the ancestral property rather they only added that the
plaintiff and defendant nos. 3 to 8 could be entitled to such share if they
proved to be the legitimate children of Appasao (since deceased) who was
entitled to half share in the property of late Veersangayya. That apart, it
appears from the record that the written statement filed by the appellants was
before the death of defendant no.I (first wife of Appasao). After the death
D of defendant no. l, when plaintiff and defendant nos. 2 to 8 claimed themselves
as heirs and legal representatives of defendant No. I, the appellants sought
amendment of the written statement challenging the legitimacy of plaintiff and
defendant nos. 2 to 8. In view of the discussions made herein above, we do
not think that it was impermissible in law for the appellants to seek amendment
E of the written statement in the manner it was sought for.
28. 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 added certain additional
F facts which need to be proved by the plaintiff and defendant no.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 regarding the legitimacy of plaintiff and defendant
nos. 3 to 7 to inherit the suit properties as heirs and legal representatives of
the deceased Appasao. Therefore, it must be held that in view of our
G discussions made herein above, the High Court was not justified in reversing
the order of the trial court and rejecting the appli~ation for amendment of the
written statement.

29. As noted herein earlier, Mr. Lalit while inviting us to reject the
application for amendment of the written statement as was done by the High
H
USHA BALASAHEB SWAMI v. KIRAN APPASO SWAMI [TARUN CHAITERJEE, J.] 319
,,
''i Court had placed strong reliance on the case of Modi Spinning (supra). In A
that case, a suit was filed by the plaintiff for claiming a decree for Rs.1,30,000
against the defendants. The defendants in their written statement admitted
that by virtue of an agreement dated 7th April, 1967 the plaintiff worked as
their stockists-cum distributor. After three years the defendants by application
under Order 6, Rule 17 of the Code sought amendment of written statement
by substituting paras 25 to 26 with a new para in which they took the fresh B
plea that plaintiff was a mercantile agent cum purchaser, meaning thereby that
.... they sought to go beyond their earlier admission that the plaintiff was a
'j stockist-cum-distributor. In our opinion, the present case can be distinguished
from that of Modi Spinning case. In that case, the pleadings that were being
made by the plaintiff for amendment were not merely inconsistent but were c
resulting in causing grave and irretrievable prejudice to the plaintiff and
displacing him completely. In paragraph 10 of this decision this Court also
appreciated that inconsistent pleas can be made in the pleadings but the
effect of substitution of paragraphs 25 and 26 in that decision was not making
inconsistent and alternative pleadings but it was seeking to displace the
plaintiff completely from the admissions made by the defendants in the written D
statement. In the facts of that decision this Court further held that if such
'\ amendments were allowed, the plaintiff will be irretrievably prejudiced by
being denied the opportunity of extracting the admission from the defendants.
That apart in that decision the High Court also rejected the application for
amendment of the written statement and agreed with the trial court. This E
decision in the case of Modi Spinning would not stand in the way of allowing
the application for amendment of the written statement as the question of
admission by the defendants made in the written statement, more particularly
in paragraph 8 of the written statement, was not at all withdrawn by the
amendment but certain paragraphs were added inviting the plaintiff and
y
defendants I to 7 to prove their legitimacy on the death of Appaso. That F
~

being the position, we do not think that Modi Spinning case will at all stand
in the way of allowing the application for amendment of the written statement.
It is true that in the case of Basavan Jaggu Dhobi this Court, in the facts
of that case, held that it would not be open to a party to wriggle out of
admission as admission is a material piece of which would be in favour of a G
_,i.
person who would be entitled to take advantage of that admission. In the
i...
present case, admission made in Para 8 of the written statement was not at
all withdrawn but only a rider and/or proviso has been added keeping the
admission in tact. In that decision also this Court has appreciated the principle
that even the admission can be explained and inconsistent pleas can be taken
H
320 SUPREME COURT REPORTS [2007] 5 S.C.R.

A in the pleadings and thus amendment of the written statement can be allowed. I-
<
In our opinion, as noted herein earlier, in the present case, the amendment
would not displace the case of the plaintiff, as it would only help the court
to decide whether the respondents are eligible to the said share in the
property on proof of their legitimacy for which no irretrievable prejudice
would be caused either to the plaintiff or to defendant nos. 2 to 8. Accordingly,
B we do not think that Basavan Jaggu Dhabi could be applied in the facts of
this case, which is clearly distinguishable.
,...
30. Again in the case of Akshaya Restaurant v. P. Anjanappa, [1995]
I'"
Supp 2 SCC 303 this Court held that even an admission in the pleadings can
c be explained and inconsistent pleas can be taken in amendment petition even
after taking a definite stand in the written statement. However, in that decision
the amendment of the written statement was rejected mainly on the ground
that respondents had entered into an agreement for development of the land
for mutual benefit of the parties and thereby the trial court came to a conclusion
that it was not open to the respondent to explain whether the agreement was
D one of sale or for mutual benefit since the agreement was sub silentio in that
behalf. In that decision this Court further held that the High Court in the
exercise of power under Section 115 of the Code of Civil Procedure committed f
no material irregularity in permitting amendment of the written statement. This
Court while considering the question whether the admission can be withdrawn
or not observed as follows:
E
"It is settled law that even the admission can be explained and even
inconsistent pleas could be taken in the pleadings. It is seen that in
paragraph 6 of the written statement definite stand was taken but
su!Jsequently in the application for amendment, it was sought to be
F modified as indicated in the petition. In that view of the matter, we find 'Y ~

that there is no material irregularity committed by the High Court in
exercising its power under Section 115 C.P.C. in permitting amendment
of the written statement. "

(Underlining is ours)
G
3 I. For the reasons aforesaid, we are unable to sustain the judgment of
the High Court rejecting the application for amendment of written statement _, ..._,
on the ground that if such amendment was allowed it would seriously prejudice
the plaintiff. There is yet another aspect of the matter. The trial court on
consideration of the written statement as well as the application for amendment
H of the written statement, in its discretion allowed the application for amendment
USHA BALASAHEBSWAMI v. KIRANAPPASOSWAMI [TARUNCHATIERJEE, J.] 321

;;.,., of the written statement. The High Court ought not to have reversed the said A
order of the trial court, rejecting the application for amendment of the written
statement, when the trial court has exercised its discretion in allowing the
amendment of written statement on consideration of the principles of law and
the material on record.

32. For the reasons aforesaid, the appeal is allowed and the order of the B
High Court rejecting the prayer for amendment of the written statement is set
aside. The application for amendment of the written statement thus stands
allowed. The trial court is now directed to dispose of the suit at the earliest
possible time preferably within six months from the date of communication of
this order without granting any unnecessary adjournment to either of the C
parties.

There will be no order as to costs.

v.s.s. Appeal allowed.