1 S.B. CIVIL WRIT PETITION NO.3992/2007 Brij Mohan and another. vs. Addl. District Judge (FT) No.3, Jodhpur and ors. Date : 8.1.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.J Chopra, for the petitioners. Mr.MC Bhoot, for the respondent. - - - - - Heard learned counsel for the parties. Learned counsel for the petitioner submitted that in a suit filed as back as in the year 1996 that after the final arguments, the plaintiff/ respondent sought time for getting the matter settled. For that purpose, learned counsel for the petitioner placed on record the certified copy of the order-sheets of the suit. It is submitted that thereafter, the plaintiff/respondent submitted an application under Order 6 Rule 17 CPC and sought permission to claim 1/4th share in the property in dispute inspite of the fact that in the original suit, the plaintiff claimed 1/8th share. Learned counsel for the petitioner pointed out that in para no.3 of the plaint, the plaintiff 2 specifically described the entire pedegree and specifically referred the share of each party and thereafter, plaintiff pleaded that the plaintiff is claiming 1/8th share in the property. The plaintiff now want to claim that his share is 1/4th and not 1/8th. It is also submitted that the trial court allowed the application after such an inordinate delay. Learned counsel for the respondent/plaintiff submitted that it was a mathematical mistake only by which the plaintiff claimed 1/8th share. It is also submitted that the plaintiff is claiming 1/4th share by correct calculation and for that purpose, he need not to produce any evidence and the trial court may decide the suit in accordance with law and may determine the correct share of the plaintiff. This is the only relief claimed by way of amendment. Therefore, if the trial court has allowed the amendment of certain correction in the calculation made by the plaintiff, then certainly that is not the material change as in a suit for partition, the shares are determined in accordance with personal law and not by mere pleadings. I considered the submissions of learned counsel for the parties and perused the plaint as 3 well as the amendment application. It appears from the plaint, copy of which is placed on record as Annex.2, that the plaintiff in his original plaint claimed 1/8th share on the basis of calculation made by him and disclosed in the plaint. It is also true that there were some talks for settlement for which proceedings were taken after final arguments. The respondent/ plaintiff submitted application for amendment of plaint with specific averments that the plaintiff is only seeking amendment because there was some mathematical calculation mistake in calculating share of plaintiff. In case, if the fact is admitted by party in pleadings, then the party may not withdraw that fact but in case, a legal inference or legal position is pleaded which according to party admitting is wrong admission, then former principle cannot be applied and there cannot be estopple against the law. The share of the parties in the case of devolution of interest is governed by the personal law and even if the plaintiff admitted less share than for which he was entitled, the Court can grant relief to the extent to which the party is entitled to and the law prevails and not the wrong admission of the party. 4 In view of the above, I do not find any reason to interfere in the impugned order. However, it is made clear that the plaintiff shall not be entitled to lead any evidence and the trial court may decide the suit in accordance with law and may determine the share only in accordance with law on the basis of evidence already on record. Consequently, this writ petition is hereby dismissed. Since the suit is at final stage, therefore, the trial court is expected to decide the suit expeditiously. (PRAKASH TATIA), J. S.Phophaliya