WP. 3303-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 3303 OF 2011 Vinodrai Kantilal Zatakia ...Petitioner Vs. Kamleshsingh Harnamsingh Chowhan ...Respondent *** Mr. Ashok G. Toraskar, for the Petitioner. Mr. Vivek Kantawalla, for the Respondent. *** CORAM: V. M. KANADE J. DATE : JULY 4, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the respondent. Petitioner is original defendant and respondent is the original plaintiff. Suit was filed by the plaintiff in the Small Causes Court vide R.A.E. Suit No. 272/462/2000. The written-statement was filed by defendant No.1 on 23rd October, 2001. Thereafter issues were framed on 9th August, 2006. The plaintiff has filed his affidavit-in-lieu of evidence. Thereafter an application was filed by the defendant for amendment of the written- WP. 3303-11 - 2 - statement. The trial court partly allowed the application only in respect of paragraph 2 and 3 of the Schedule and rejected the application for amendment, so far as amendment to Schedule-I is concerned. 2. The defendant being aggrieved by this order, preferred the Revision Application. The revisional court confirmed the order of the trial court. Being aggrieved by this order, petitioner filed this petition under Art. 227 of the Constitution. It is submitted that petitioner subsequently came to know that plaintiff is neither a co-owner nor landlord in respect of the suit premises, in view of the decree passed in Suit No. 68 of 1972 which was filed by the Mainpuri Court (U.P.) for division of property including the suit property, which was decided on 23rd April, 1982. It was submitted that in order to bring on record additional information, which was received by him, he wanted to delete paragraph 3 of the written statement and add one paragraph for bringing on record the said information as his reply in the place of deleted paragraph 3 of the written-statement. Reliance was placed on two judgments of the Apex Court- (1) Estralla Rubber, Appellant vs. Dass Estate (P) Ltd., Respondent1 ; and (2) Harwinder Singh, Petitioner vs. Balwinder Singh & Ors., Respondents 2. It is submitted that the trial 1 (2001) 8 Supreme Court Cases 97 2 AIR 2005 NOC 139 (PUNJ. & HAR.) WP. 3303-11 - 3 - court as well as the appellate court has not rejected the application on the ground of delay but has rejected the application on the ground that the admission given by the respondent in his earlier written statement should not be allowed to be retrieved. 3. On the other hand, the learned counsel for the respondent submitted that the defendant was very well aware about the proceedings pending in the Allahabad High Court, and therefore, submitted that Contempt Petition was filed by the defendant/petitioner herein against the respondent and in the said Contempt Petition there is a specific averment that respondents are the co-owners. It was further submitted that in the written-statement, there is a specific averment in paragraph 2B about the pendency of the suit between the parties. It is further submitted that therefore, before the issues were framed, the defendant was very well aware of these facts and he only wanted to delete the admission which he lateron found to be inconvenient. It is submitted that the Apex Court in the case of – Revejeetu Builders & Developers, Appellant vs. Narayanswamy & Sons & Ors., Respondents1, has held that if amendment application is found to be frivolous, heavy costs should be imposed, and the Court dismissed the amendment application, imposing 1 (2009) 10 Supreme Court Cases 84 WP. 3303-11 - 4 - costs of Rs. one lakh. The learned counsel further relied on the judgment in the case of -Gautam Sarup, Appellant vs. Leela Jetly & Ors., Respondents1. It is a settled position in law that if an admission is given by the party in his pleading, later on he cannot be permitted to retrieve that admission, since if it is allowed to do so, prejudice would be caused to the otherside. The Apex Court has consistently taken the said view right from – Heeralal v. Kalyan Mal2, which has been confirmed in Modi Spinning & Weaving Mills Co. Ltd. vs. Ladha Ram & Co. 3 and also confirmed in Usha Balasaheb Swami v. Kiran Appaso Swami4 which has been again confirmed in Revajeetu Builders & Developers (supra) and Gautam Sarup (supra). 4. In this view of the matter, there is no infirmity in the order passed by both the courts below. No case is made out for interference with the judgment and order passed by both the lower courts. The judgments on which reliance is place by the learned counsel for the petitioner/defendant does not apply to the facts of the case, firstly, because judgment of the Apex Court in Estralla Rubber (supra), the fact was that application for amendment was made too elaborate the defence 1 (2008) 7 Supreme Court Cases 85. 2 (1998) 1 SCC 278 . 3 (1976) 4 SCC 320 4 (2007) 5 SCC 602 WP. 3303-11 - 5 - and to take additional plea in support of its case; secondly, in case of Harwinder Singh (supra), the Court held that admission in written statement should be permitted to be withdrawn on ground that it was factually incorrect or manipulated or fraudulently obtained. In the present case, the defendant was aware about the existence of the said fact at the time when he filed the written-statement. Hence, no case is made out for interfering with the impugned order. Civil Writ Petition is, therefore, dismissed. [ V. M. KANADE J.]