IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21601 of 2008(V)
1. VENUGOPALAN KIDAVU, AGED 63 YEARS
... Petitioner
Vs
1. POKKALI PADMANABHAN,S/O. GOVINDAN
... Respondent
2. THILOTHAMA, D/O. KUNHIKANARAN
3. VENUGOPALAN, H/O. THILOTHAMA
4. MEYAHAMETHAL MOOTHARAN
5. ELATHU METHAL KANDTHY
6. RAMACHANDRAN KIDAVU
7. GANGADHARAN KIDAVU
For Petitioner :SRI.NIRMAL. S
For Respondent :SMT.VEENA HARI
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 21601 OF 2008 V
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Dated this the 8th day of July, 2009
J U D G M E N T
The 7th defendant in OS.No.339/90 on the file of the
Principal Munsiff, Kozhikode, has filed this writ petition. Suit was
one for perpetual prohibitory injunction and the 1st respondent is
the plaintiff. The 1st respondent passed away during the pendency
of this writ petition, and his legal heirs have been impleaded as
additional plaintiffs in the suit. The 5th and 6th defendants claim
right of possession over a property having an extent of 1 acre and
41 3/4 cents which was obtained under a deed executed by the
plaintiff(late). Ext.P2 is the copy of that deed. Later, these
defendants moved an application for amending their written
statement contending that the property covered by the deed as per
the measurements shown was 2 acre and 43 cents but by mistake
after showing the measurements the extent was shown as 1 acre
and 41 3/4 cents. The amendment sought for was objected to by
the plaintiff and after hearing both sides, the learned Munsiff
disallowed the amendment. Ext.P7 is the copy of the order passed
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declining the amendment. Propriety and correctness of that order
is challenged in the writ petition.
2. I heard the counsel on both sides. It is submitted by
the counsel for the petition that the proposed amendment with
respect to the extent of the land is in tune with the measurement
shown in the schedule of the title deed and the extent stated was
by a mistake in preparing and filing the written statement. That
mistake in the deed was carried over and unless it is corrected,
prejudice will be caused to these defendants. On the other hand,
learned counsel for the plaintiff would contend that the extent of
the property claimed by the defendant stated in the written
statement is a specific admission as coming under section 58 of
the Evidence Act and as such the defendants have no right to
seek its withdrawal. These defendants have filed an additional
written statement which was also received by the court, according
to the learned counsel. That circumstance is also canvassed to
contend that the proposed amendment for withdrawing of an
admission in the written statement cannot be permitted and the
order of the court below declining that amendment is proper, valid
and correct. So on the facts presented, the question emerging for
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consideration is whether the extent of the land claimed by the
defendants as shown in their written statements would constitute a
judicial admission as contemplated under section 58 of the
Evidence Act. If that proposition is accepted, then any mistake
appearing in the pleading of any party cannot be corrected and
then Order 6 Rule 17 CPC would be rendered nugatory and
meaningless. The above Rule is essentially intended to provide an
opportunity to seek correction of mistakes in the pleadings so that
the actual controversy involved in the lis can be determined. The
extent stated as 1 acre and 41 3/4 cents shown in Ext.P2 deed
which admittedly was executed by the plaintiff(late) in favour of the
defendants does not tally with the measurements specifically
shown in that deed is not disputed. So the essential question is
whether there was any mistake in the measurement or in the
actual extent shown. Probably, such a mistake could have crept in
the measurement also, and need not be in the extent shown. But
in determining the issue raised for consideration at this stage
when the defendant canvasses for correction of the extent stated
in his written statement, it cannot be denied on the ground that the
earlier statement constituted an admission. An admission can be
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shown to be wrong by the party who made it. Admissions are not
conclusive, and no admission will confer title. Suit is one for
injunction. The burden is on the plaintiff to prove his possession
over the property scheduled in the plaint. It is admitted that now
the schedule has been amended so as to claim a lesser extent
than what was earlier stated in the plaint. If the contention
pressed into service by the plaintiff to resist the claim of the
defendant that the extent shown earlier constituted an admission,
the plaintiff also could not have amended the schedule. Whatever
amendments which are necessary for resolving the controversy
arising in a lis if it does not cause prejudice or injury to the other
side has to be permitted because in drafting of plaint or written
statement, which is usually done by advocates, there is every
chance of errors and mistakes creeping in and that should not be
allowed to cause injury to the parties involved in the lis. If the
advocate had taken care to examine Ext.P2 sale deed when the
written statement was prepared and filed, the mistake could have
been noticed. For that reason alone, the written statement filed
showing a lesser extent, which does not reflect with the deed, the
defendant cannot be denied an opportunity to correct his written
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statement. View expressed by the court below that the correction
sought for by the defendant would amount to advancing of a new
case is erroneous. No new case is sought to be introduced but
only the description of the property made in tune with his deed.
Amendment in the written statement has to be permitted as it is
required to resolve the controversy involved in the suit. The
arguments advanced by the learned counsel that an additional
written statement is filed and so the amendment need not be
allowed lacks merit because the defendant by his pleadings is not
setting up a conflicting version. So setting aside Ext.P7 order, the
amendment sought for by the defendant is allowed. The learned
counsel for the plaintiff seeks permission to amend the plaint in
view of the permission given to the defendant in the written
statement. The plaintiff is free to amend the plaint if so advised,
and also if provided by law.
Sd/-
(S.S. SATHEESACHANDRAN, JUDGE)
aks
// True Copy //
P.A. to Judge