The & Ors. v. Manohar Singh (AIR 2006 SC 2832) and Usha Balashaheb Swamy v. Kiran & Ors.

The petitioners herein are the defendants. The respondent herein is the plaintiff and he filed O.S.No.209 of 2006 for partition and separate possession stating that the suit schedule property is the joint family property and that he is entitled to 1/3rd share in it. A detailed counter-affidavit is filed by the petitioners denying the said allegations. According to them, the suit schedule property is self-acquired property and the respondent has no right whatsoever in it. Subsequently, they filed I.A.No.110 of 2008 seeking to amend paragraphs 3 to 6 in the written statement by substituting with paragraphs 3 to 10 in the petition filed along with the affidavit. The said application, as stated supra, was dismissed by the Court below.

Despite service of notice, the respondent has not put in his appearance.

Heard the learned counsel for the petitioners and perused the material on record.

Learned counsel for the petitioners submitted that as the trial of the suit is not commenced, the petition under Order VI Rule 17 is maintainable. It is his further submission that the petitioners are not acquainted with the legal position and of their rights in the property and that their earlier Advocate drafted the written statement and the counter in I.A.No.452 of 2006 and obtained their signatures.

In the said written statement, of course, there was an admission to the effect that the properties are joint in nature. As the said factum is incorrect, the petitioners filed the said application seeking amendment. In this context, learned counsel for the petitioners has drawn the attention of this Court to the judgment of the Apex Court in SUSHIL KUMAR JAIN v. MANOJ [1] KUMAR . In similar facts, the Apex Court has taken the view that the admission made in the written statement can definitely be explained through amendment. The Apex Court, after referring to the various judgments, i.e., Panchdeo Narain Srivastava v. K. Jyoti Sahay (AIR 1983 SC 462) and See Baldev Singh & others v. Manohar Singh (AIR 2006 SC 2832) and Usha Balashaheb Swamy & others v. Kiran Appaso Swami & others (AIR 2007 SC 1663), observed at paragraph 12 of the said judgment, which reads as under: Keeping these principles in mind, let us now take up the question raised before us by the learned counsel for the parties. As stated herein, earlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Pandhdeo Narain Srivastava v. K. Jyoti Sahay, AIR 1983 SC 462, while considering this issue, held that the admission made by a party may be withdrawn or may be explained”. In the light of the said ratio laid down by the Apex Court, this Court is of the view that the trial Court erred in placing reliance on the judgment of this Court in Gundla Thirupataiah v. Karunam Rama Subbaiah [2] .

Accordingly, the Civil Revision Petition is allowed and the order impugned is set aside. The Court below is hereby directed to make the required amendment in the written statement and issues in accordance with the amended written statement. No order as to costs. _________________________ GOPALA KRISHNA TAMADA Date.19.11.2010. [1] [2] AIR 2009 SC 2544 1999(3) ALT 111