JUDGMENT
Chandramauli Kr. Prasad, J.
1. Defendants Ist set-petitioners, being aggrieved by the order dated 2.6.2005 passed by the Subordinate Judge, VIII, East Champaran at Motihari in Partition Suit No. 86 of 1998 rejecting their prayer for amendment of the written statement, have preferred this revision application.
2. Defendants-Ist set consist of defendant No. 1 to 6. Defendant Nos. 1 and 2 as also defendant Nos. 3 to 6 filed separate written statements. Defendant Nos. 1 and 2 as also defendant Nos. 3 to 6 later on, also filed separate applications for amendment of the written statement.
3. Defendant Nos. 1 and 2 sought amendments of paragraph Nos. 9 to 12 and 14 of the written statement. In paragraph No. 9 of the written statement, these defendants had admitted that the land detailed in the deed of conveyance is a purchased land of plaintiff No. 1, whereas by proposed amendment, they seek to withdraw that and plead that it is not an acquired land of plaintiff No. 1 and, in fact, fell into his share and that of their father in partition and plaintiff is entitled to 1/3 share of that property. Further, admissions made in paragraph Nos. 10 to 12 and 14 are sought to be withdrawn by the proposed amendment. In paragraph Nos. 10 to 12 and 14 of the written statement, these defendants had admitted plaintiffs’ averments in paragraph Nos. 8,9.11 and 14 of the plaint respectively. By the proposed amendment, they seek to withdraw these pleadings.
4. Amendments sought for by defendant Nos. 3 to 6 are in paragraph Nos. 11 to 13 and 15 of the written statement. In the aforesaid paragraphs, these defendants have admitted the plaintiffs’ plea in paragraph Nos. 8,9,11 and 14 of the plaint.
5. By the impugned order, both the applications have been rejected on the ground that defendants-Ist set seek to withdraw the admissions made in the written statement, which is not fit to be granted.
6. Defendant Nos. 1 and 2 and 3 to 6 have preferred one revision against the order rejecting separate applications filed by them under Order 6 Rule 17 of the Code of Civil Procedure, hereinafter referred to as ‘the Code’, for amendment of the written statement. As these defendants have preferred one civil revision application, rejecting two separate applications, I have proceeded to examine the validity of those orders on the petitioners’ undertaking that they shall pay another set of Court fee.
7. Mr. Vijay Shankar Shrivastava, learned Counsel appearing on behalf of the petitioners, submits that by way of mendment, inconsistent and alternative plea can be allowed. However, on fact, he is unable to dislodge the conclusion of the Court below that by the proposed amendment, these defendants seek to withdraw the admissions made in their respective written statements. In view of aforesaid, he takes a stand that admission made by a party, can be withdrawn and hence, Court below, while declining to allow the prayer of amendment, failed to exercise the jurisdiction vested in it by law.
8. In view of aforesaid, the point which falls for determination, is as to whether admission made in the written statement, can be withdrawn by its amendment under Order 6 Rule 17 of the Code.
9. Mr. Shrivastava, submits that there is no legal impediment in withdrawing the admission made in the written statement and in support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Anr. and my attention has been drawn to the following passage from paragraph No. 3 of the said judgment, which reads as follows:
3.xxx- 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. The learned trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction far a reason which is untenable ought not to have interfered with the order made by the trial Court. The learned Counsel for the respondents in this connection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment. The decision does not lay down any particular principle of law and appears to be a decision on its own facts. And ordinarily, it is well settled that unless there is an error in exercise of jurisdiction by the Trial Court, the High court would not interfere with the order in exercise of its revisional jurisdiction.
(underlining mine)
10. Reliance has also been placed on a decision of the Supreme Court in the Case of Estralla Rubber v. Dass Estate (P) Ltd and my attention has been drawn to the following passage from paragraph No. 5 of the judgment, which reads as follows:
5.xxx Assuming that there, was some admission indirectly, it is open to the defendant to explain the same. Looking to the proposed amendment, it is clear that it is required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. The High Court also found fault with the defendant on the ground that there was delay of three years in seeking amendment to introduce new defence. From the records, it cannot be said that new defence was sought to be introduced. Even otherwise, it was open for the defendant to take alternative or additional defence. ‘Merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to the plaintiff so as to take away any accrued right, the application could not be rejected. At any rate, it cannot be said that allowing the amendment caused irretrievable prejudice to the plaintiffs.
11. Yet another decision on which reliance has been placed, is a decision of the Supreme Court in the case of Baldev Singh and Ors. v. Manohar Singh and Anr. and my attention has been drawn to the following passage from paragraph No. 14 of the said judgement, which reads as follows:
14.xxx-Even if there were some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement.xxx
12. Mr. Shiva Nandan Ray, Senior Advocate, appearing on behalf of plaintiff-opposite party No. 1, however, contends that the defendants cannot be allowed to withdraw the admissions made by them in the written statement and in case, it is allowed, same shall cause serious prejudice to the plaintiffs. Reliance has been placed on a decision of the Supreme Court in the case of M/s Modi Spinning & Weaving Mills Co. Ltd and another v. Ladha Rama & Co. in which it has been held as follows:
10.- It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleas but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.
13. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend pleading in such manner and on such terms as may be just and necessary for the purpose of determining the real questions in controversy between the party. This power is wide and can be invoked at any stage of the proceeding, subject to the rider as provided in the proviso to the said Order, with which we are not concerned in the present case. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statement. In fact, the Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has the right to take alternative plea in defence, even an inconsistent plea and for that matter, can explain the admission made. However, in my opinion, there is distinction between inconsistent and alternative pleas and that of admission made in the written statement. The defendant by amendment in the written statement may be allowed to make inconsistent and alternative pleadings, but cannot be permitted to withdraw the admission made in the written statement by its amendment. The Court below, on appraisal of the materials before it, came to the conclusion that the amendments sought for by the defendants, will lead to withdrawing the admissions made in the written statement, which conclusion, the defendants being unable to dislodge. I am of the opinion that same was rightly not allowed as the plaintiffs would have irretrievably prejudiced by that. The view which I have taken finds support from the judgement of the Supreme Court in the case of M/s Modi Spinning and Weaving Mills Co. Ltd (supra) relied on by the plaintiff.
14. Now, I shall refer to the various authorities relied on by the petitioners in support of their contention. In the case of Panchdeo Narain Srivastava (supra), the Supreme Court was primarily considering the ambit of revisional power of the High Court, when the challenge is made to the order allowing amendment and in that context held that ordinarily, the High Court would not interfere with such order in exercise of its revisional jurisdiction unless there is error by the Subordinate Court in exercise of jurisdiction. Hence this decision in no way supports the contention of the petitioners.
15. The decision in the case of Estralla Rubber Co. Ltd. (supra), in my opinion, instead of supporting the contention of the petitioners, goes against them. In the said case, it has been held that by way of amendment, the defendant can explain the admission. In the said case, the Supreme Court did not, as a rule of law, held that a admission can be withdrawn by amendment. In the said case, on fact, the Court found that no admission was made by the defendant in the written statement and by the proposed amendment, it sought to elaborate the defence and take additional plea in support of its case, which would be evident from the following passage from paragraph No. 5 of the judgment, which reads as follows:
5.xxx- We have perused the relevant records including the original application and the proposed amendment. We are not able to see any admission made by the defendant as such, which was sought to be withdrawn. By the proposed amendment the defendant wanted to say that Ala Mohan Dass was a permissive occupier instead of owner. The further amendment sought was based on the entries made in the revenue records. It is not shown how the proposed amendment prejudiced the case of the plaintiff. It is also not the case of the plaintiff that any accrued right to it was tried to be taken away by the proposed amendment. The proposed amendment is to elaborate the defence and to take additional plea in support of its case.”xxx”
16. As stated earlier, there is distinction between withdrawing the admission and explaining the same by filing application for amendment of the written statement. Defendant may be allowed to explain the admission in the written statement but cannot withdraw the same and if one understands this fundamental distinction, the decision of the Supreme Court in the case of Baldev Singh (supra), in no way, supports the petitioners’ contention. In the said case, the question was as to whether defendant can be allowed to take inconsistent pleas in their defence and after review of various authority, the Court came to the conclusion that inconsistent or alternative plea can be made in the written statement. In the present case, the amendment sought for do not fall within the category of either ‘inconsistent or alternative plea” or for that matter, explaining the admission and as such, this judgement in no way, supports the contention of the petitioners.
17. This question was directly in issue in the case of M/s Modi Spinning and Weaving Co. Ltd. (supra) in which it has been clearly held that amendment seeking to displace the plaintiff from the admission made in the written statement by way of amendment, cannot be allowed as it will irretrievably prejudice the plaintiff.
18. Mr. Srivastava, then contends that the Court should be generous in allowing the amendment. He points out that the plaintiff can be compensated by cost, which the defendant is prepared to pay. In support of the submission, my attention has been drawn to the following passage from paragraph No. 4 of the decision in the case of B.K.N. Pillai v. P. Pillai and Anr. 2000 AIR SCW 43, which reads as follows:
4.xxx The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event.”xxx
19. I do not have the slightest hesitation in accepting the broad submission of Mr. Shrivstava that the Court should be liberal in allowing the amendment but this does not mean that every amendment deserves to be allowed. The principal reason that had led to the formulation of this rule is that the object of Courts and Procedural rule is to decide the rights of the parties and not to punish them for their mistakes. The power to allow an amendment is undoubtedly wide and may at any stage be properly exercised in the interest of justice but there is well-recognised restrictions for the exercise of that power and one of that is that admission made in the written statement can not be allowed to be withdrawn by way of amendment, as same would prejudice the plaintiff. In the case of B.K.N. Pillai (Supra), the Court, on fact, found that proposed amendment did not amount to withdrawal of the admission which was likely to cause prejudice to the plaintiff. In fact, in the said case, it has been clearly held that ” the defendant has a right to take alternative plea in defence, which, howeveri, is subject to an exception that by the proposed amendment, other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn.” Thus, in my opinion, taking a generous and liberal view, the amendment sought for was not fit to be allowed and the learned Judge, did not err in rejecting the prayer for amendment of the written statement.
20. In the result, I do not find any merit in the application and it is dismissed, but without any order as to cost.