Civil Revision No. 4540 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4540 of 2011 (O&M) Date of Decision: October 3rd, 2011 Didar Singh and others .... Petitioners Versus Shamsher Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Tribhuwan Dahiya, Advocate, for the petitioners. VIJENDER SINGH MALIK, J. This is plaintiffs' revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 21.5.2011 passed by Additional Civil Judge (Senior Division), Khanna, District Ludhiana, whereby the application of the defendant-respondents for amendment of the written statement has been allowed. In the suit brought by the petitioners for partition and permanent injunction, the defendants claimed in the written statement that Gurdial Kaur died intestate. They have also averred that Gurdial Kaur lived with defendant No.1 whereas defendant Nos. 2 and 3, being her grandsons, used to serve her. By way of the amendment, the defendants wanted to set up a Will dated 14.9.1989, executed by Gurdial Kaur in favour of Civil Revision No. 4540 of 2011 2 .. defendants No. 2 and 3. They want to claim now that deceased Gurdial Kaur did not die intestate. The application has been opposed by the plaintiffs. They have claimed that the application is not maintainable at this stage. They have further claimed that the defendants have already averred that Gurdial Kaur had died intestate and that they cannot now seek amendment on the basis of Will dated 14.9.1989, which is a result of forgery. The plea of finding the Will from the old papers is also said to have no truth. Hearing learned counsel for the parties, learned trial court allowed the application subject to payment of Rs.1,000/- as costs, vide order dated 21.5.2011. Aggrieved by the aforesaid order, the plaintiffs have brought this revision petition. I have heard Shri Tribhuwan Dahiya, learned counsel for the petitioners and have gone through the record. Learned counsel for the petitioners has submitted that the the defendants cannot be permitted to withdraw an admission made in favour of the opposite party by way of amendment of the written statement. According to him, though amendment to the written statement stand on a better footing than the amendment to the plaint, yet the amendment of the written statement cannot be allowed, if it operates as withdrawal of any admission made in the written statement. In support of his submission, he has cited before me a case reported as Paramjit Kaur Vs. Sajjan Singh Civil Revision No. 4540 of 2011 3 .. and others (2005-2) PLJ 738. Relying on the principle laid down by Hon`ble Supreme Court of India in B.K.Narayana Pillai Vs. Parameswaran Pillai and another, (2000) 1 SCC 712 and Estralla Rubber Vs. Dass Estate (P) Ltd. 2001(8) SCC 97, it has been laid down in Paramjit Kaur's case (supra) that an admission made by way of original pleadings cannot be withdrawn by filing an application under Order 6 Rule 17 CPC. Learned counsel for the petitioners has further submitted that if the defendants have discovered any Will from the old papers, they may file another suit and they cannot be permitted to plead the said Will in this case by way of amendment. He has submitted that valuable right has accrued to the plaintiffs on the existing pleadings and that valuable right cannot be withdrawn from the plaintiffs by way of this amendment. The principle laid down in B.K.Narayana Pillai's case (supra) is that the proposed amendment should not cause any injustice to the opposite party and a defendant cannot be permitted to withdraw an admission made in favour of the plaintiff by way of amendment in the written statement. The said principle had been followed in Estralla Rubber's case (supra) and has also been followed in Paramjit Kaur's case (supra). The defendants have claimed in their application filed under Order 6 Rule 17 CPC that they have come across a Will dated 14.9.1989 executed by Gurdial Kaur in favour of defendants Civil Revision No. 4540 of 2011 4 .. No. 2 and 3 and they want to set up that Will to oppose the claim of the plaintiffs to the suit property. The Will dated 14.9.1989 is an unregistered Will. Had it been a registered Will, the situation would have been different. Whether the said Will is genuine or not is a question to be decided after the defendants are given an opportunity to lead evidence to prove the same. No finding on its genuineness or otherwise could be given at this stage. So, there is no presumption available at present against the genuineness of this Will. If Gurdial Kaur has left a Will, then naturally she cannot be said to have died intestate. The fact pleaded by the defendants in the written statement, which is claimed to be an admission in favour of the plaintiffs, is the effect of absence of Will left by Gurdial Kaur. So, in fact, in the original written statement, the defendants had admitted the factum of absence of Will of Gurdial Kaur and on having located a Will from old papers, they want to set up that Will. No separate suit based on this Will would lie after this suit is decided. By setting up the newly found Will of Gurdial Kaur, the defendants would be withdrawing the averment that Gurdial Kaur died intestate. Yet it would not amount to admission of a fact of the nature it was there in Paramjit Kaur's case (supra), where the defendants had admitted the genuineness and validity of power of attorney and the sale deed based thereon. Here it is a question of absence or existence of a Will. Earlier when the defendants had no Will in their possession, they Civil Revision No. 4540 of 2011 5 .. were to admit that there was no Will left by Gurdial Kaur and consequently, Gurdial Kaur could be said to have died intestate. Now, after discovery of the Will, the plea would be that she had executed a Will in favour of defendants No.2 and 3. If the Will is genuine, the Will of Gurdial Kaur regarding her property has to be given effect to. If the Will is found to be fake, the defendants would face the consequences. Consequently, I failed to agree with learned counsel for the petitioners in his submissions. The revision petition is, therefore, found to have no merit and is dismissed. (VIJENDER SINGH MALIK) JUDGE October 3rd , 2011 som