Civil Revision No. 5996 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5996 of 2009 (O&M) Date of decision: 09.08.2010 Smt. Rajinder Kaur ....Petitioner Versus Smt. Chinto alias Malkiat Kaur ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sumeet Mahajan, Sr. Advocate, with Mr. Amit Kohar, Advocate, for the petitioners. Mr. J.S. Chahal, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 30.5.2009, passed by the learned Civil Judge (Senior Division), Ludhiana, vide which the application moved by the defendant/petitioner for amendment of the written statement under Order 6 Rule 17 of the Code of Civil Procedure, stands declined. The plaintiff filed a suit for declaration claiming to be owner in possession of the suit property with consequential relief of mandatory injunction. In the written statement, para No.3 of the plaint was admitted. After the pleadings were complete and issues were framed, when the case was at evidence state and the plaintiff/respondent filed affidavit in examination-in-chief, application was moved for amendment of the written statement to deny the averments made in para No.3. Civil Revision No. 5996 of 2009 (O&M) -2- The case set up by the defendant/petitioner was, that it was due to inadvertent mistake of the counsel that para No.3 was admitted. The actual fact was, that Hira Singh had, in fact, died in year year 1947 and, therefore, no land was inherited by the plaintiff/respondent on his death. The learned trial Court rejected the application for amendment on the ground, that it was not permissible to withdraw the admission, by displacing the right accrued to the plaintiff/respondent. Furthermore the amendment could not be allowed, in view of the proviso to Order 6 Rule 17 of the Code of Civil Procedure, which bars the commencement of trial. The learned senior counsel for the petitioner challenged the impugned order by contending that the learned trial Court was wrong in rejecting the application merely on the ground that admission could not be withdrawn. The contention of the learned senior counsel for the petitioner was, that it is permissible for a party to withdraw the admission or explain it. In support of this contention the learned senior counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Panchdeo Narain Srivastava Vs. KM. Jyoti Sahay and another, 1984 (Supp) Supreme Court Cases 594. The learned senior counsel for the petitioner also challenged the fining of the learned trial Court, that the amendment could not be allowed after commencement of the trial by placing reliance on the judgment of the Hon'ble Supreme Court in Usha Devi Vs. Rijwan Ahamd and others, (2008) 3 Supreme Court Cases 717 to contend that Civil Revision No. 5996 of 2009 (O&M) -3- trial in this case has not commenced as framing of issues, could not be treated to be commencement of trial. The learned counsel for the respondent supported the judgment passed by the learned trial Court by placing reliance on the judgment of the Hon'ble Supreme Court in M/s Modi Spinning and Weaving Mills Co. Ltd., and another Vs. M/s Ladha Ram and Co., AIR 1977 (SC) 680 by contending that it was not permissible by way of amendment to introduce entirely a new case, so as to displace the plaintiff completely from the admission made by the defendant. The Hon'ble Supreme Court has laid down, that in case such an amendment is allowed it will be prejudicial to the interests of the plaintiff/respondent. Reliance was also placed on the judgment of the Hon'ble Supreme Court in Heeralal Vs. Kalyan Mal, 1998(1) RCR (Civil)140, wherein the Hon'ble Supreme Court was pleased to lay down, that the defendant cannot be allowed to withdraw a clear admission of fact by taking inconsistent stand affecting prejudicially to the plaintiff. This law was laid down in view of the fact that in view of the provisions of Code of Civil Procedure which entitles the party to get a decree on the basis of admission. The Hon'ble Supreme Court held that withdrawal of admission prejudicially affects the right of the plaintiff. In reply to the contention raised by the learned senior counsel for the petitioner, that in this case trial has not commenced and that the amendment could be allowed at any stage, in the interest of justice and to do substantial justice, the learned counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court in Vidyabai & Civil Revision No. 5996 of 2009 (O&M) -4- Ors. Vs. Padmalatha & Anr., 2009(1) RCR (Civil) 763, wherein the Hon'ble Supreme Court has finally put a seal to amendment after commencement of trial. The Hon'ble Supreme Court has laid down in the judgment referred to above, that the learned trial Court has no jurisdiction to allow amendment after filing of affidavit as evidence in examination-in-chief. In the case in hand it is not in dispute that the plaintiff filed affidavit in examination-in-chief, therefore, in view of the authoritative judgment of the Hon'ble Supreme Court in Vidyabai & Ors. Vs. Padmalatha & Anr. (supra), there is no merit in this revision petition, which is ordered to be dismissed. No costs. (Vinod K. Sharma) Judge August 09, 2010 R.S.