Civil Revision No.6107 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.6107 of 2008 Date of decision: 1.04.2009. Bharat Kaushik .....Petitioner Versus Ashok Kumar Gulati and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Rohit Ahuja, Advocate for the petitioner. Mr. Ashwani Talwar, Advocate for respondents ***** S.D.ANAND, J. The plaintiff-petitioner has a grievance that a plea raised by him under Order 6 Rule 17 read with Section 151 C.P.C. for obtaining the leave of the Court to delete one particular averment had been inappropriately declined by the learned Trial Court. Through the declined plea, the plaintiff-petitioner wanted the leave of the Court to delete an averment that the payment of an amount of Rs. 15 lacs had been made by him against a receipt. The plea was declined by the learned Trial Court by holding that the plaintiff-petitioner cannot be allowed to wriggle out of an admission which he had made in the course of the pleadings at the trial. Civil Revision No.6107 of 2008 -2- **** In support of the plea, that an amendment for withdrawal of an admission of fact can also be allowed, learned counsel relies upon Panchodev Narain Srivastava Vs, Km. Jyoti Sahay and another AIR 1983 Supreme Court 462 wherein the Apex Court held as under:- “An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn.” On merits, the learned counsel for the plaintiff-petitioner argues that the allowance of the requested amendment shall not change the nature of the suit at all and it will only enable the plaintiff- petitioner to get a factually wrong averment deleted. Copy of the plaint is available on record as Annexure P-1. The plaintiff-petitioner had entered into an agreement to purchase the land under reference from the defendants-respondents (who were owners in possession thereof) for a sum of Rs.63 lacs. A sum of Rs.34 lacs was paid as earnest money in the following manner:- “i) Cheque No.256185 dated 8.9.2006 of Rs.4,75,000/- of Bank of Baroda, Faridabad. ii) Cheque No.256186 dated 14.9.2006 of Rs.4,75,000/- of Bank of Baroda, Faridabad. iii) Cheque No.256187 dated 17.9.2006 of Rs.4,75,000/- of Bank of Baroda, Faridabad. iv) Cheque No.256188 dated 11.9.2006 of Rs.4,75,000/- of Bank of Baroda, Faridabad. Civil Revision No.6107 of 2008 -3- **** b) and the said amount/cheques have been given directly to DLF Model Town, Faridabad Medical and community Facilities Charitable Trust on the request of the First party and the second party has paid a sum of Rs.15,00,000/- as cash to the first party.” The balance amount was payable by the petitioner to the respondents hereby or on 27.4.2007. The parties fell out in the matter of implementation of the impugned agreement, thereby impelling the plaintiff-petitioner to file a suit for specific performance on the basis of the agreement aforementioned. In the course of the counter filed by the respondents herein to the amendment plea ( a copy whereof was shown at the time of argument before this Court), the defendants-respondents did not dispute the fact that earnest money to the extent of Rs. 34 lacs had been paid. While, however, averring that the plaintiff herein had withheld the original receipt which was in his possession, a photo copy of the receipt aforementioned was placed on record as Annexure R-2. A perusal thereof would indicate that even the defendants-respondents do not dispute that a sum of Rs.34 lacs had been paid as earnest money. It would be apparent from a conjunctive perusal of the above discussion that there is no controversy about the factum of payment of Rs.34 lacs as earnest money. That the payment of Rs. 15 lacs had been made in cagh or not is also not in dispute. The only controversy is whether a separate receipt had been executed Civil Revision No.6107 of 2008 -4- **** with regard to payment of cash amount of Rs. 15 lacs or not. It cannot, thus, be said that allowance of the amendment plea would change the very nature of the suit which (suit) shall continue to be a suit for specific performance and the plaintiff herein would continue to own up the averment that a sum of Rs. 34 lacs had been paid as earnest money, out of which Rs.19 lacs had been paid by cheques and balance of Rs. 15 lacs was paid in cash. In the light of the foregoing discussion, the petition shall stand allowed. The impugned order dated 9.5.2008 shall stand set aside. The application for amendment of the plaint to the above indicated effect shall stand allowed. April 01, 2009 (S.D.Anand) Pka Judge