AFR Court No. - 28 Case :- WRIT - C No. - 47362 of 2010 Petitioner :- Phool Chandra And Others Respondent :- Raghunandan Prasad And Others Petitioner Counsel :- H.L. Pandey Hon'ble Sanjay Misra,J.
Heard Sri H.L.Pandey, learned counsel for the petitioner.
The petitioner was defendant in Suit No. 198 of 1992, which was
decreed by the trial court on 28.11.2008. He is aggrieved by the
order dated 27.7.2010 passed in Civil Appeal No. 107 of 2008 by
the Additional District Judge, Court No.12, Aligarh, whereby his
amendment application No. 33Ka-1/34Ga-2 has been rejected.
Learned counsel for the petitioner states that the only amendment
sought was in paragraph 7 of the written statement, whereby the
word ‘not’ was mistakenly not typed and hence the amendment was
sought before the First Appellate Court when this typographical
error came to the notice of the defendant-appellant. According to
him the allegations in the plaint were not admitted by the
defendant but due to said typographical error in paragraph 7 of the
written statement the word ‘not’ could not be typed. He therefore,
states that the amendment application has been illegally rejected
by the court below.
Having considered the submission of learned counsel for the
petitioner and perused the record, it appears that by the order dated
27.7.2010, the appellate court has rejected the application for
amendment made to amend the written statement by the defendant-
appellant on the ground that once an admission has been made by
the party at an earlier stage, he cannot withdraw such admission
and place the other party to a disadvantage. The averment in
paragraph 7 of the plaint related to situation of the property. This
was admitted in paragraph 7 of the written statement. The reason
given in the impugned order is in accordance with law and it
cannot be said that there is any illegality in the same.
Moreover, the issue no.1 has been decided by the trial court
against the defendant-appellant/petitioner and therefore, also the
admission made by him of paragraph 7 of the plaint of the suit
filed in the year 1992 cannot now be permitted to be retracted
from. The amendment has been sought in the written statement at
the first appellate stage and a party cannot be permitted to fill up a
lacuna in his case after the suit has been decreed.
The writ petition has no merits and is dismissed.
No order is passed as to costs.
Order Date :- 10.8.2010
Lbm/-