RSA No.1648 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1648 of 2010(O & M) Date of Decision: 16.09.2010 Surjit Singh .....Appellant Versus Kiranjit Kaur and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Onkar Rai, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.4917-C of 2010 This is application for condonation of delay of 327 days in re-filing the appeal. Heard. It is alleged in the application that counsel for the applicant-appellant shifted his office-cum-residence and during shifting of the house, the paper book was put in another brief by the Clerk of the counsel. These averments taken at face value do not explain long delay of almost 11 months in refiling the appeal. It is not even mentioned as to when the counsel shifted office-cum-residence and how suddenly the paper book was traced on 20.12.2009 and when the paper book had been misplaced. Judgment of this Court in the case of Karnail Singh versus Piara Singh, 2002(2) PLJ 261 relied on by counsel for the applicant-appellant is not applicable to the facts of the instant case. No sufficient ground for condonation of long delay of 327 days in refiling the appeal is made out. The RSA No.1648 of 2010 (O & M) -2- application is accordingly dismissed. CM No.4918-C of 2010. For reasons mentioned in the application which is accompanied by affidavit, delay of 24 days in filing the appeal is condoned. CM No.4919-C of 2010. Allowed as prayed for. RSA No.1648 of 2010 and CM Nos.4920-4921-C of 2010 Defendant Surjit Singh is in second appeal. Suit was filed by respondents Kiranjit Kaur and her two minor daughters against the defendant-appellant. Respondent No.1 is widowed daughter-in-law of the appellant whereas respondent Nos.2 and 3 are grand-daughters of the appellant. Appellant's son Sikander Singh, who was husband of respondent No.1 and father of respondent Nos.2 and 3, has since died. Respondents claimed maintenance from the appellant and also sought creation of charge on 29 kanals 6 marlas land and 15 Bighas 17 Biswas land alleging the same to be coparcenary property. Injunction against alienation of the said land was also claimed. Defendant-appellant admitted the relationship between the parties. The defendant denied his legal liability to maintain the respondents, but accepted his moral liability to maintain them. The defendant also pleaded that the respondents have no right in the coparcenary property except right of residence. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ludhiana vide RSA No.1648 of 2010 (O & M) -3- judgment and decree dated 29.04.2006 partly decreed the suit qua plaintiff No.1 only and directed the defendant-appellant to pay Rs.1,000/- per month as maintenance and the same was created as charge on 29 kanals 6 marlas land. Suit on behalf of plaintiff Nos.2 and 3 was dismissed. Defendant did not assail the judgment and decree of the trial Court. However, plaintiffs preferred first appeal against judgment and decree of the trial Court. Learned Additional District Judge, Ludhiana vide judgment and decree dated 04.10.2008 allowed the said first appeal and decreed the plaintiffs' suit granting maintenance of Rs.1000/- per month to plaintiff No.1 and Rs.500/- per month each to plaintiffs No.2 and 3 and charge for the same was created on entire suit land i.e 29 kanals 6 marlas and 15 Bighas 17 Biswas land as mentioned in the plaint. However, relief of permanent injunction was declined. Feeling aggrieved, defendant has preferred the instant second appeal. Along with appeal, defendant has filed CM No.4920-C of 2010 for amendment of written statement to withdraw the admission made in the written statement regarding the suit property being coparcenary property. By way of amendment, the defendant wants to plead that the suit land is self-acquired property of the defendant and is not coparcenary property. Appellant has also moved CM No.4921-C of 2010 for additional evidence to prove the said plea which is sought to be taken by amendment of written statement. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the law of amendment of pleadings is liberal and even admission can be RSA No.1648 of 2010 (O & M) -4- withdrawn by amendment of written statement. Reliance in support of this contention has been placed on three judgments of Supreme Court namely: 1) Rajesh Kumar Aggarwal and others versus K. K. Modi and others, (2006) 4 Supreme Court Cases 385; 2) Usha Bala Shaheb Swami and others versus Kiran Appaso Swami and others, (2007) 5 Supreme Court Cases 602 and 3) Baldev Singh and others versus Manohar Singh and another, (2006) 6 Supreme Court Cases 498. It was also contended that additional evidence can be allowed even at appellate stage. Reliance in support of this contention has been placed on judgment of Apex Court in the case of North Eastern Railway Administration, Gorakhpur versus Bhagwan Das (Dead) By Lrs, (2008) 8 Supreme Court Cases 511. I have carefully considered the aforesaid contentions, but find no merit therein. In none of the judgments, cited by counsel for the appellant, it has been laid down that admission made in the written statement can be withdrawn by amendment and that too at the stage of second appeal. Judgment in the case of Rajesh Kumar Aggarwal (supra) deals with amendment of pleadings and does not deal with withdrawal of any admission already made in the original written statement by amendment. Judgment in the case of Baldev Singh (supra) lays down that amendment of pleadings can be allowed to explain some admission made in evidence as well as in original written statement. However, this judgment also does not lay down that admission made in the pleading can be withdrawn by RSA No.1648 of 2010 (O & M) -5- amendment. It only lays down that such admission can be explained by amendment. Judgment in the case of Usha Balashaheb Swami (supra) is rather against the contention of the appellant. It lays down that a party cannot wriggle out of admission by seeking amendment, although admission can be explained and it would be permissible to add a rider and/or proviso to the admission while keeping the admission intact. This proposition of law clearly goes against the contention of the appellant. This judgment categorically lays down that a party cannot wriggle out of an admission by seeking amendment of the pleadings. In the instant case, appellant by amendment does not want to explain the admission made in the written statement regarding suit land being coparcenary property nor the defendant wants to add any rider or proviso to the said admission while keeping the admission intact. On the contrary, the defendant by way of amendment wants to completely withdraw the admission made in the written statement and wants to plead that the suit land is self-acquired property. This cannot be done by amendment and particularly at the stage of second appeal. Consequently, application for amendment of written statement bearing CM No.4920-C of 2010 cannot be allowed and is accordingly dismissed. Consequently, CM No.4921-C of 2010 for additional evidence is also dismissed because proposed additional evidence is for proving the plea which was sought to be taken by amendment, but which has been declined. Learned counsel for the appellant has no meaningful argument to advance in the main appeal. Defendant is having 29 kanals 6 marlas land in one village and 15 Bighas 17 Biswas land in RSA No.1648 of 2010 (O & M) -6- another village. Consequently, maintenance amount of Rs.1000/- per month for respondent No.1 and Rs.500/- per month each for respondent Nos.2 and 3 cannot be said to be excessive by any standard so as to warrant reduction. Prices of daily necessities are sky rocketing and consequently the aforesaid maintenance amount would hardly be sufficient for the respondents. It may be added that respondent Nos.2 and 3 must be studying in school and, therefore, expenses for their education are also required in addition to daily necessities of life. The appeal is also liable to dismissal because delay in refiling the appeal has not been condoned. However, even on merits, the appeal cannot be allowed. For the reasons aforesaid, the appeal is dismissed in limine. 16.09.2010. ( L. N. MITTAL ) A. Kaundal JUDGE