ORDER
1. This is an application seeking amendment of the written statement moved by defendants 10 and 12. The plaintiffs have instituted this suit for pre-emption in respect of property No. 1, Goela Lane, Underhill Road, Civil Lines, Delhi and for perpetual injunction restraining the defendants from selling, transferring, alienating, making any additions, alterations, or demolitions in the said property. It is pleaded in the plaint that the said property is located in a private lane known as ‘Goela Lane’ which was formerly owned by the joint Hindu family of Shri Basheshar Nath Goela and Shri Jogeshar Nath Goela and the said lane is a blind lane and the house in question is the last house in the said lane. Shri Jogeshar Nath Goela had died issueless in 1922 leaving behind his widow Sint. Chander Kala. It is alleged that partition was effected of the joint family properties between Shri Basheshar Nath Goela and Smt. Chander Kala on April 18, 1932 which was incorporated in the partition deed -executed on the same date. It was duly registered on May 3, 1932. By virtue of the said partition, property No. 3, Goela Lane, besides other properties was allotted to the share of Shri Basheshar Nath Goela while properties Nos. I and 2, besides other properties, were allotted to the share of Smt. Chander Kala. The private lane known as Goela Lane was to remain the joint property.
2. It is pleaded that in pursuance of the said partition, it was agreed that each party, his heirs, assigns will have a right of preemption over the property sold by the other party and his heirs and assigns, to keep the property which was the subject matter of partition and belonged to the Joint Hindu , Family from going to a stranger and to keep such property in the family.
3. Basheshar Nath Goela died in May, 1945 leaving behind a widow and son Om Prakash Goela as his heirs. In 1945, Chander Kala adopted Harish Chand Goela as her son unto her deceased husband and Harish Chand Goela died on October 13, 1964 leaving behind Prakash Wati (wife), Pradip Kumar Goela (son), Kumari Kumud and Kumari Sunita, his two daughters.
4. The Municipal Corporation has given new No. 8 / 1, Underhill Road, Civil Lines, Delhi to property No. 3, Goela Lane, while properties Nos. I and 2 retain their original numbers. It is pleaded that there is no access to the properties in dispute from the road except through the blind lane known as Goela Lane. It is further pleaded that Munno Devi wife of late Shri Basheshar Nath Goela died in 1973 and plaintiff No. I Orn Prakash Goela is the only heir to her while plaintiffs 2 to 4 are the sons of plaintiff No. 1. Smt. Chander Kala died in 1974 leaving behind Parkash Vati (son’s widow), Shri Pradip Kumar Goela (grandson), Kumari Kumud and Kumari Sunita her grand daughters as her adopted son Shri Harish Chand Goela had predeceased her. It is pleaded that Prakash Wati, Pradip Kumar Goela and M/s Jogeshwar Nath Harish Chand H.U.F. became the absolute owners of House No. 1, Goela Lane, including the back portion of the said house known as No. I A, Goela Lane, Underhill Road, Civil Lines, Delhi.
5. It is pleaded that Parkash Wati, Pradip Kumar Goela and H. U. F. of M / s Jogeshwar Nath Harish Chand had sold the said house No. I A, Goela Lane to defendants I to 9 vide sale deed dated October 3, 1979 for a consideration of Rs. 4,50,000/- and the possession of a portion of the said property has been delivered to the vendees whereas a portion of the property is still in possession of the vendors (defendants 10 to 12) as shown in green in the plan. The plaintiffs claim a right of pre-emption in respect of the said sale, on various grounds which need not be enumerated at present.
6. The suit is contested by defendants. The defendants 10 and 12 in their written statement admitted the execution of the partition deed and the same being registered and the correctness of the shares allotted vide the aforesaid partition. However, they took the plea that the alleged restriction placed on the rights of the heirs, legal representatives and assigns pertaining to the right of pre-emption given was void and not binding on the defendants as the said restriction is hit by S. 28 of the Indian Contract Act. It was pleaded that the said restriction appears to have been the result of some coercion as the same could not have been the result of free consent of the parties to the said deed. Another plea taken is that even if the court comes to the conclusion that there had been an alleged restriction in the partition deed, the same could have been restricted only to the parties to the said document and not to their heirs, legal representatives and assigns. The further plea taken is that Chander Kala did not have any right to put any restriction over the rights of her heirs, legal representatives and assigns. No particulars were given as to how Chander Kala was coerced in agreeing to the aforesaid restriction placed on the rights by giving the right of pre-emption. Defendants 10 and 12 had filed their written statement on 26th February, 1981. By way of amendment application, the said defendants now want to take the plea that Smt. Chander Kala was a parda nashin and illiterate lady and thus she was not made to understand the said restriction imposed in the partition deed and, therefore, the said restriction is not binding on her heirs and assigns and it was also not binding on Chander Kala herself.
7. So by this amendment application, defendants 10 and 12 want to split up the document in two parts as they do not challenge that all other terms of the partition deed were validly arrived at between Sint. Chander Kala and the other co-owner and partition also had taken place as mentioned in the partition deed. But now they want to take the plea that only a particular clause in the partition deed was not agreed upon between the executants of the partition deed. It is not understood how such a plea can be allowed to be raised by way of amendment of the written statement when it is not the case of these defendants that the whole of the partition deed was executed without Chander Mala knowing the implications of the different clauses of the partition deed. Rather there has been an admission made that Chander Kala had executed the partition deed and partition had infact taken place in accordance with the terms mentioned in the partition deed. The defendants 10 and 12 cannot be allowed to withdraw this particular admission and permitted to take the plea that infact the clause in question in the partition deed giving right of pre-emption was not understood by Chander Kala as she was parda nashin and illiterate lady. It is to be remembered that this application for amendment had been moved in 1986 i.e. after five years or so of filing the written statement and these defendants are not strangers but are the close relations of, Chander Kala and were very well aware of the facts from the very inception. It is not disclosed in the application as to why such a plea could not be taken in the original written statement.
8. Counsel for defendants 10 and 12 has cited a few judgments which lay down general principles which have to be kept in view while allowing or disallowing the amendment in the pleadings. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, , it has been laid down that the rules of procedure are intended to be a hand-maid to the administration of justice and a party cannot be refused just relief merely because of some negligence, inadvertence or even infraction of the rules of procedure. It was laid down that the court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. It was emphasised that however, gross the negligence or carelessness may have been the first omission and, however, late, the proposed amendment is sought the amendment may be allowed if it can be made without injustice to the other side. The reference is made to M/ s Ganesh Trading Co. v. Moji Ram, in which it was laid down that the provisions for the amendment of the pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends objective and not for defeating them. It was also laid down that even a very defective pleading may be permitted to be cured so as to constitute a cause of action where there was none provided necessary conditions such as payment of either any additional court-fees, which may be payable or of costs of the other side are complied with. It was also emphasised that the procedural law is intended to facilitate and to obstruct the course of substantive justice and provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties and to prevent deviations from the course which litigation on particular causes of action must take.
9. Learned counsel for the defendants 10 and, 12 has also sought support from Ishwardas v. State of M.P., in which even amendment of written statement was allowed at the appellate stage. In the said case the necessary material on which the plea arising from the amendment was already before the court, the Supreme Court held that amendment to take a plea based on such material can be even allowed at the appellate stage even. Then reference was made to Mohd. Shamim Farooqi v. Delhi Wakf Board, . In the said case the Amendment was sought to show that the plaint was not instituted with the consent of the Property Committee incorporated under the Delhi Wakf Board Regulations, 1963, which plea was not earlier taken. On facts the judgment is totally distinguishable. Learned counsel for the defendants has also cited Hari Kishan v. Prem Narain, . In the said case the defendant had already taken the plea that he was a tenant. By urging that tenancy of his predecessor mother was not terminated by any valid notice, he wanted also to take the plea by way of amendment that his father was also a tenant along with his mother. Such an amendment was allowed by the court holding that the Plea already stands taken that defendant is the tenant and he can be allowed to plead any facts to show that he has become tenant, in addition to the facts already pleaded. Again, this judgment is based on its own peculiar facts and has no application to the points being urged before me by learned counsel for the defendants 10 and 12.
10. Learned counsel for the defendants 10 and 12 has also cited M/s Jawarmal Ramkaran Bombay v. M/s P. K. Jamnadas, Ahmedabad, . This judgment is also based on facts of its own kind although it is laid down that the court is more liberal in allowing amendment of the written statement than of the plaint. There is no dispute about the principle laid down in this judgment. However, present is a case where defendants 10 and 12 are seeking permission to withdraw the admission already made without showing that the said admission was in any manner erroneous when it was made. No material has been referred to in support of the amendment application to show that the admission was erroneous on facts.
11. The rules and principles which govern the question of allowing or disallowing amendment are now well settled. It is also one of the principles to be kept in. view that normally an admission already made in the written statement, implied or express, should not be allowed to be withdrawn by taking resort to amendment of the pleadings unless some material is produced in the court to show that an erroneous admission of fact has been made.
12. In the present case, defendants 10 and 12 do not dispute the correctness of the various clauses of the partition deed executed by Smt. Chander Kala. They had taken the plea that Chander Kala was coerced to agree to the said particular disputed clause meaning thereby that Chander Kala knowingly had agreed to incorporation of the disputed clause in the partition deed. Now by way of amendment, the defendants 10 and 12 want to take the plea that intact Chander Kala was never aware of the incorporation of the aforesaid clause in the partition deed inasmuch as she was a parda nashin and illiterate lady and the said clause was not explained to her before she signed and executed the partition deed. I am afraid this amendment cannot be allowed as it would amount to withdrawing the admission already made that Chander Kala had executed the partition deed knowing its contents. The only plea taken was that she was coerced in agreeing to the said particular clause.
13. ‘Then, counsel for defendant; 10 and 12 has urged that the said restriction placed on the rights of the owners and heirs is illegal and void because of various legal defects. The legal flaws showing the said restriction to be void or illegal can always be urged in arguments and there is no need to plead specifically as to on what point the illegality is being urged in respect of the said clause. Issues have already been framed which cover the legal pleas now sought to be raised by defendants 10 and 12 in order to show that the said restriction incorporated in the partition deed is illegal. So, I find that it was not a fit case for allowing amendment of the written statement as prayed making it clear that the defendants would have right to show in arguments as to from what illegality the clause in question suffers. The application is dismissed.
14. Application dismissed.