IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.187 of 2008 Date of Decision: 18.11.2010. Hasan Din ..Petitioner. Versus. Sher Mohammed ..Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? . No For the Petitioner (s): Mr.Suneet Goel, Advocate. For the Respondent(s): Mr.Bhuvnesh Sharma, Advocate. Deepak Gupta, J (oral) 1. This petition is directed against the order dated 14.5.2008 whereby the application filed by the petitioner (hereinafter referred to as the defendant) for amendment of the written statement has been rejected on two grounds; firstly that the amendment has been filed after commencement of the trial and the defendant has failed to show due diligence and secondly that the amendment is not necessary and by way of such amendment the very nature of the written statement is being changed. 2. As far as the first point is concerned, I am of the view that the learned trial Court has erred in applying 2 the proviso to Order 6 Rule 17 CPC. This proviso came into effect on 15th July, 2002 and this Court in a number of cases has held that this proviso will be applicable only in suits filed after 15th July, 2002. The present suit was filed much earlier. 3. Having said so, to my mind the petitioner cannot be permitted to amend the written statement. The plaintiff Mehar Deen filed a suit against Ranu claiming that he and Ranu are real brothers being the sons of Noordin. It was on the basis of this relationship that the plaintiff claimed to be owner to the extent of 1/8th share in the suit property and it was claimed that the entry showing defendant Ranu to be owner of 1/4th share was incorrect and that both had 1/8th share in the property. 4. It would be pertinent to mention that in para 2 in the plaint a pedigree table was depicted and in this pedigree table Mehar Din and Ranu were shown as the sons of Noordin and it was specifically mentioned in para 2 of the plaint as follows: “In other words the parties are real brothers and having common ancestors or father Nooruldin alias Noordin.”. 3 5. Written statement was filed by Ranu and in response to para 2 of the plaint it was stated that this para needs no written statement. This clearly shows the admission on the part of Ranu that he is the real brother of the plaintiff Mehardin. Now by means of this amendment the petitioner who claims to have succeeded the estate of Ranu by way of a Will is trying to set up the plea that in fact Mehardin and Ranu were not real brothers and belonged to different castes. 6. I am clearly of the view that such amendment cannot be permitted. The petitioner, who allegedly succeeded to the estate of Ranu on the basis of Will, cannot get out of the admission made by Ranu that he is the real brother of Mehardin. It does not lie in the mouth of the petitioner, who is not even related to the parties, to challenge the relationship between the two real brothers because when the real brothers were fighting they never denied the relationship between them. 7. Sh.Suneet Goel has relied upon the decisions of the Apex Court in Estralla Rubber vs. Dass Estate (P) Ltd. (2001) 8 SCC 97 and Baldev Singh and others vs. Manohar Singh and another, (2006) 6 SCC 498 wherein the Apex Court has held that the parties can be 4 permitted to take inconsistent pleas. That may be true but can a party be permitted to withdraw its clear-cut admission which has direct bearing on the issue in hand? The whole case set up by the plaintiff was that he was entitled to a share in the property equal to that of his real brother Ranu. When Ranu did not dispute his relationship with the plaintiff, can a third person dispute this relationship? The answer would be in the negative. 8. In view of the above discussion the petition is dismissed. The parties through their counsel are directed to appear before the learned trial Court on 22nd December, 2010. Since the suit was filed in the year 2001 the learned trial Court is directed to dispose of the suit at the earliest and not later than 30th of June, 2011. No costs. November 18, 2010 ( Deepak Gupta ), J. PV