IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No.31309 of 2008(B) ---------------------------------- OS.22/2006 of M.C.,PATHANAMTHITTA .................... PETITIONER: --------------- K.M.SHAMSUDHEEN, S/O.HAJI MEERAN SAHIB LABBA, ANIYA HOUSE, KONNI, THAZHAM MURI, IRAVON VILLAGE, KOZHENCHERRY, PATHANAMTHITTA, REP. BY HIS POWER OF ATTORNEY HOLDER & SON SHRI.SAIFUDHEEN, ANIYA HOUSE, KONNI, THAZHAM MURI, IRAVON VILLAGE, KOZHENCHERRY, PATHANAMTHITTA. BY ADV. SRI.JACOB P.ALEX RESPONDENT: ---------------- MEHABOOB @ NAUSHAD, S/O.LATE P.UMMER KANNU RAWTHER, EAPEN PURAYIDOM, CHITTUR MURI, PATHANAMTHITTA VILLAGE. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.31309 of 2008(B) APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE PLAINT IN O.S.22/06 ON THE FILE OF THE MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P2:- TRUE COPY OF THE WRITTEN STATEMENT IN O.S.22/06 FILED BY THE RESPONDENT. EXT.P3:- TRUE COPY OF APPLICATION FOR AMENDMENT FILED BY THE RESPONDENT AS I.A.1993/08. EXT.P4:- TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P3. EXT.P5:- TRUE COPY OF THE ORDER DT.18/09/08 IN O.S.22/06 BY THE MUNSIFF'S COURT, PATHANAMTHITTA. ................. K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.31309 of 2008 ------------------------------------------------ Dated this the 15th day of January, 2009 JUDGMENT Counsel for the respondent prays for adjournment today also for the purpose of filing counter affidavit. Time prayed for is refused. 2. Petitioner is the plaintiff in O.S.22/06 on the file of the Munsiff's Court, Pathanamthitta. The suit is one for declaration of title and for permanent prohibitory injunction against the defendants against trespass into Item No.1 pathway scheduled to the plaint. Defendants filed Ext.P2 written statement and by Ext.P3 amendment application they sought for amendment of written statement which according to the petitioner/plaintiff was to withdraw the admissions made in the original written statement and also contrary to the written W. P. C. No.31309 of 2008 -2- statement already filed. The petitioner/ plaintiff filed Ext.P4 objection pointing out all the above aspects but the court below however, passed Ext.P5 order allowing amendment as prayed for vide Ext.P3 application. It is assailing Ext.P5 order that this Writ Petition has been filed by the petitioner/plaintiff. 3. It is vehemently contended by the counsel for the petitioner/plaintiff that on a perusal of Ext.P2 written statement it can be seen that there are several admissions made by the defendant in the written statement and that by Ext.P3 the amendment sought for is withdrawing the admissions so made in the written statement and that the court below should not have allowed the respondent/ defendant to withdraw the judicial admissions made in the written statement which cannot be got over at all and is binding on the W. P. C. No.31309 of 2008 -3- respondent/defendant. It is pointed out by the counsel for the petitioner that in para 2 of Ext.P2 written statement the defendant has admitted the averments in para 2 and 3 of the plaint but by the amendments sought it is attempted to be modified to the effect that averments in para 2 is denied and averments in para 3 of the plaint alone is admitted; and that the statements in para 3 of the written statement the third line to the effect that item No.2 property was purchased by the plaintiff from the defendants brother is to be deleted. Further, the 5th sentence in para 3 of the written statement to the following effect:- “ is sought to be got amended to the following effect:- W. P. C. No.31309 of 2008 -4- “ 4. Again the 6th and 7th sentence in para 3 of the written statement to the following effect:- “ is sought to be got deleted withdrawing the said admission. Next amendment sought for is a statement in para 6 of the additional written statement correcting the statement “ as “ Thus, altogether as per Ext.P3 amendment application the amendments sought to be effected are of five items of which the petitioner/plaintiff has no objection in effecting the correction sought to be made as item No.5 whereas all the other statements are W. P. C. No.31309 of 2008 -5- withdrawing the admissions made by the defendants in the written statement. The admissions made which are statements of facts are admissions made in judicial proceedings and cannot be withdrawn or explained away. Hence, to the extent Ext.P5 order on I.A. 1993/08 has allowed items 1 to 4 amendments sought for to be made in the written statement, the said order is set aside. The amendment allowed vide Ext.P5 order shall stand limited to item No.5 which is correction of para 6 in the additional written statement correcting the words “ as “ 5. This Writ Petition is thus allowed to the extent stated above. K.P.BALACHANDRAN, JUDGE kns/-