REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1808 OF 2008

(Arising out of SLP (C) No.18511 of 2006)

Gautam Sarup … Appellant

Versus

Leela Jetly & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1.Leave granted.

2.One Shanti Sarup executed a Will. Respondents 1, 2, 3 and 6 are his

daughters. Respondent No.7 Ritu Sarup is the daughter of Respondent

No.2. She had an accidental fall and became handicapped.

3.The Will was executed on or about 23.9.1999 bequeathing his

properties in equal shares to the appellant and the said Ritu Sarup.

4.Appellant filed a suit in the Court of Civil Judge (Senior Division),

Ludhiana, inter alia, for declaration of his title to the suit properties and for

a decree of permanent injunction.

Respondent No.6 Leela Jetlley, on being served with the summons

appeared through one Shri M.P. Vasudeva, Advocate. She filed a written

statement admitting the averments made in the plaint.

5.A counter claim was filed by Respondent Nos.1 to 5. In their written

statement, they did not deny or dispute execution of the Will by Shanti

Sarup.

6.Respondent No.6, however, filed another written statement denying

and disputing the claim of the appellants in toto. She also filed an

application on 28.8.2000 for permission to take the first written statement

off the records and to file another written statement on the premise that she

had not engaged the said M.P. Vasudeva, nor had she filed any written

statement through him. She denied and disputed her signatures appearing

on the said written statement. The said application was allowed by the

learned Trial Judge.

7.A revision petition was filed by the appellant thereagainst. By a

judgment and order dated 15.3.2002, the High Court, while setting aside the

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said order of the learned Trial Judge dated 12.9.2001 directed it to hold an

enquiry at the first instance as to whether the respondent No.6 ever engaged

Mr. Vasudeva, Advocate or ever signed the written statement which had

been placed on record. It was directed that in the event the findings of the

said enquiry go in her favour, it will be open to her to file the second written

statement or the one which has been filed by her may be accepted. It was,

however, observed :

“Of course, I am not depriving Smt. Jetly to file an

application under Order VI Rule 17 CPC in case

the findings are given against Smt. Leela Jetly

regarding filing of earlier statement.”

8.Pursuant to or in furtherance of the said direction, an enquiry was

held and it was opined that respondent No.6 had, in fact, appointed the said

Shri Vasudeva as her lawyer and filed her written statement on 30.3.2000.

A revision application was filed thereagainst by the respondent No.6 which

by reason of an order dated 7.4.2004, was dismissed by the High Court.

9.An application for amendment was thereafter filed by her on

5.11.2004 which was allowed by the learned Trial Court by an order dated

23.2.2005. Appellant moved the High Court invoking its revisional

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jurisdiction and by reason of the impugned judgment the same was

dismissed opining :

“Thus, I am of the opinion that the plaintiff is not

prejudiced in any manner while allowing

defendant No.6 to amend the written statement.

The burden of proving the Will is to be discharged

by the plaintiff in any case. Whether admissions

contained in the written statement dated 30.3.2000

were relevant for proof of Will or such admissions

were made erroneously or under mistaken belief or

misrepresentation or such admissions are

conclusive, are the questions which can be decided

only after defendant No.6 is permitted to amend

the written statement. It is a disputed question of

fact which cannot be decided at the stage of

deciding the application for amendment of written

statement whether admissions in the written

statement dated 30.3.2000 are conclusive and

binding on defendant No.6 and to what extent.”

10.Mr. Sudhir Chandra, learned senior counsel appearing on behalf of

the appellant, would submit :

1.Respondent No.6, in view of admissions contained in her written

statement filed on 30.3.2000 , could not have been permitted to resile

therefrom.

2.She, having failed in her attempt to set up a plea that she had not

engaged Shri Vasudeva as a lawyer and did not put her signature on

the written statement, should not have been permitted to amend the

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written statement, in view of the fact that she was an attesting witness

to the Will and claimed a benefit thereunder.

11.Mr. M.L. Verma, learned senior counsel appearing on behalf of

Respondent No.6, on the other hand, submitted

(a)Admission being an evidence against a person making the same, the

onus would be on him to show that it was made under some mistake

or otherwise and, thus, the amendment of written statement is

permissible in law.

(b)Apart from Respondent No.6, six other defendants had denied or

disputed the correctness of the Will pursuant whereto an issue was

framed and as such the question as to whether she made any

admission in her first written statement or not is wholly academic.

(c)Although a person making admission should not ordinarily be

permitted to resile therefrom, there does not exist any bar to explain

such admission or clarify the same and in that view of the matter such

portion of the application for amendment of written statement, which

seeks to explain the admission and/or clarify the same should be

permitted to be retained.

12.Order VI Rule 17 of the Code of Civil Procedure reads, thus :

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17. Amendment of pleadings—The Court may at

any stage of the proceedings allow either party to

alter or amend his pleadings in such manner and

on such terms as may be just, and all such

amendments shall be made as may be necessary

for the purpose of determining the real questions

in controversy between the parties:

Provided that no application for amendment

shall be allowed after the trial has commenced,

unless the Court comes to the conclusion that is

spite of due diligence, the party could not have

raised the matter before the commencement of

trial.”

13.An admission made in a pleading is not to be treated in the same

manner as an admission in a document. An admission made by a party to

the lis is admissible against him proprio vigore.

14.In State of Haryana & Ors. v. M.P. Mohla [(2007) 1 SCC 457] this

Court stated :

“25. The law as regards the effect of an admission

is also no longer res integra. Whereas a party may

not be permitted to resile from his admission at a

subsequent stage of the same proceedings, it is

also trite that an admission made contrary to law

shall not be binding on the State.”

15.A thing admitted in view of Section 58 of the Indian Evidence Act

need not be proved. Order VIII Rule 5 of the Code of Civil Procedure

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provides that even a vague or evasive denial may be treated to be an

admission in which event the court may pass a decree in favour of the

plaintiff. Relying on or on the basis thereof a suit, having regard to the

provisions of Order XII Rule 6 of the Code of Civil Procedure may also be

decreed on admission. It is one thing to say that without resiling from an

admission, it would be permissible to explain under what circumstances the

same had been made or it was made under a mistaken belief or to clarify

one’s stand inter alia in regard to the extent or effect of such admission, but

it is another thing to say that a person can be permitted to totally resile

therefrom.

The decisions of this Court unfortunately in this regard had not been

uniform. We would notice a few of them.

16.A Three Judge Bench of this Court speaking through Ray, CJ in Modi

Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co. [(1976) 4

SCC 320] opined :

“10. It is true that inconsistent pleas can be made

in pleadings but the effect of substitution of paras

25 and 26 is not making inconsistent and

alternative pleadings 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

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defendants. The High Court rightly rejected the

application for amendment and agreed with the

trial court.”

17.A Two Judge Bench of this Court, without noticing the binding

precedent in Modi Spinning (supra), in Panchdeo Rarain Srivastava v. Km.

Jyoti Sahay & Anr. [1984 Supp. SCC 594], stated :

“But the learned counsel for the respondents

contended that by the device of amendment a very

important admission is being withdrawn. 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.”

Yet again, in Akshaya Restaurant v. P. Anjanappa & Anr. [1995

Supp.(2) SCC 303], the following observations were made by the Court :

“We find no force in the contention. It is settled

law that even the admission can be explained and

even inconsistent pleas could be taken in the

pleadings. It is seen that in para 6 of the written

statement a definite stand was taken by

subsequently in the application for amendment it

was sought to be modified as indicated in the

petition. In that view of the matter, we find that

there is no material irregularity committed by the

High Court in exercising its power under Section

115 CPC in permitting amendment of the written

statement.”

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[See also Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary [1995

Supp. (3) 179]

18.The question came up for consideration before another Division

Bench in Heeralal v. Kalyan Mal & Ors. [(1998) 1 SCC 278], wherein

noticing the aforementioned decisions, Modi spinning’s decision was

followed. Akshaya Restaurant (supra) was held to have been rendered per

incuriam.

Other decisions which were cited at the Bar were distinguished

stating:

“10. Consequently it must be held that when the

amendment sought in the written statement was of

such a nature as to displace the plaintiff’s case it

could not be allowed as ruled by a three-member

Bench of this Court. This aspect was unfortunately

not considered by the latter Bench of two learned

Judges and to the extent to which the latter

decision took a contrary view qua such admission

in written statement, it must be held that it was per

incuriam being rendered without being given an

opportunity to consider the binding decision of a

three-member Bench of this Court taking a

diametrically opposite view.

11. We were then taken to another decision of this

Court in the case of Panchdeo Narain Srivastava

v. Jyoti Sahay. In that case the plaintiff was held

entitled to amend his plaint by submitting that

though earlier he stated that the defendant was

uterine brother, the plaintiff by amendment in his

plaint could submit that the defendant was his

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brother and the word “uterine” could be dropped.

Even in that case the main case put forward by the

plaintiff did not get changed as the plaintiff

wanted to submit that the defendant was his

brother. Whether he was uterine brother or real

brother was a question of degree and depended on

the nature of evidence that may be led before the

Court. Therefore, the deletion of the word

“uterine” was not found to be displacing the

earlier case of the plaintiff. On the facts of the

present case also, therefore, the said decision

cannot be of any assistance to the learned counsel

for the respondents.

12. In our view, therefore, on the facts of this case

and as discussed earlier, no case was made out by

the respondents, contesting defendants, for

amending the written statement and thus

attempting to go behind their admission regarding

5 out of 7 remaining items out of 10 listed

properties in Schedule A of the plaint.”

19.Hiralal (supra) has been recently noticed by this Court in

Sangramsinh P. Gaekwar & Ors. v. Shantadevi P. Gaekwad (Dead) through

LRs. & Ors. [(2005) 11 SCC 314], wherein it is stated :

“215.Admissions made by Respondent 1 were

admissible against her proprio vigore.

216. In Nagindas Ramdas v. Dalpatram Ichharam

this Court held :

“... Admissions if true and clear, are by far

the best proof of the facts admitted.

Admissions in pleadings or judicial

admissions, admissible under Section 58 of

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the Evidence Act, made by the parties or

their agents at or before the hearing of the

case, stand on a higher footing than

evidentiary admissions. The former class of

admissions are fully binding on the party

that makes them and constitute a waiver of

proof. They by themselves can be made the

foundation of the rights of the parties. On

the ot her hand, evidentiary admissions

which are receivable at the trial as evidence,

are by themselves, not conclusive. They can

be shown to be wrong.”

(See also Bishwanath Prasad v. Dwarka Prasad.)

217. In Viswalakshmi Sasidharan v. Branch

Manager, Syndicate Bank this Court held :

“On the other hand, it is admitted that due to

slump in the market they could not sell the

goods, realise the price of the finished

product and pay back the loan to the Bank.

That admission stands in their way to plead

at the later stage that they suffered loss on

account of the deficiency in service.”

218. Judicial admissions by themselves can be

made the foundations of the rights of the parties.”

Modi spinning (supra) and Hiralal (supra) were followed therein.

Yet again in Union of India v. Pramod Gupta (Dead) by LRs. & Ors.

[(2005) 12 SCC 1] this Court held :

“Before an amendment can be carried out in terms

of Order 6 Rule 17 of the Code of Civil Procedure

the court is required to apply its mind on several

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factors including viz. whether by reason of such

amendment the claimant intends to resile from an

express admission made by him. In such an event

the application for amendment may not be

allowed. (See Modi Spg. & Wvg. Mills Co. Ltd. v.

Ladha Ram & Co., Heeralal v. Kalyan Mal and

Sangramsinh P. Gaekwad v. Shantadevi P.

Gaekwad)”

20.We may, at this stage, notice some decisions of this Court whereupon

strong reliance has been placed by Mr. Verma.

In Punjab National Bank v. Indian Bank & Anr. [(2003) 6 SCC 79],

this Court opined that an application for amendment may be allowed to

clarify the relief which had been prayed for even in the plaint, particularly,

when no prejudice in this behalf would be caused to the other party to the

lis.

In Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors. [(2006) 4

SCC 385], while emphasizing on the underlined principles of Order VI Rule

17 of the Code of Civil Procedure, it was held :

“15. The object of the rule is that the courts should

try the merits of the case that come before them

and should, consequently, allow all amendments

that may be necessary for determining the real

question in controversy between the parties

provided it does not cause injustice or prejudice to

the other side.

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16. Order 6 Rule 17 consists of two parts. Whereas

the first part is discretionary (may) and leaves it to

the court to order amendment of pleading. The

second part is imperative (shall) and enjoins the

court to allow all amendments which are necessary

for the purpose of determining the real question in

controversy between the parties.

17. In our view, since the cause of action arose

during the pendency of the suit, proposed

amendment ought to have been granted because

the basic structure of the suit has not changed and

that there was merely change in the nature of relief

claimed. We fail to understand if it is permissible

for the appellants to file an independent suit, why

the same relief which could be prayed for in the

new suit cannot be permitted to be incorporated in

the pending suit.

XXX XXX XXX

20. … The court always gives leave to amend the

pleadings of a party unless it is satisfied that the

party applying was acting mala fide. There is a

plethora of precedents pertaining to the grant or

refusal of permission for amendment of pleadings.

The various decisions rendered by this Court and

the proposition laid down therein are widely

known. This Court has consistently held that the

amendment to pleading should be liberally

allowed since procedural obstacles ought not to

impede the dispensation of justice.”

These decisions for the reasons stated supra are not applicable in the

instant case.

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21.Recently, in Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami

& Ors. [(2007) 5 SCC 602], this Court observed :

“26. Therefore, it was neither a case of withdrawal

of admission made in the written statement nor a

case of washing out admission made by the

appellant in the written statement. As noted herein

earlier, by such amendment the appellant had kept

the admissions intact and only added certain

additional facts which need to be proved by the

plaintiff and Defendants 2 to 8 to get shares in the

suit properties alleged to have been admitted by

the appellants in their written statement.

Accordingly, we are of the view that the appellants

are only raising an issue regarding the legitimacy

of the plaintiff and Defendants 3 to 7 to inherit the

suit properties as heirs and legal representatives of

the deceased Appasao. Therefore, it must be held

that in view of our discussions made hereinabove,

the High Court was not justified in reversing the

order of the trial court and rejecting the

application for amendment of the written

statement.”

22.What, therefore, emerges from the discussions made hereinbefore is

that a categorical admission cannot be resiled from but, in a given case, it

may be explained or clarified. Offering explanation in regard to an

admission or explaining away the same, however, would depend upon the

nature and character thereof. It may be that a defendant is entitled to take an

alternative plea. Such alternative pleas, however, cannot be mutually

destructive of each other.

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23.An explanation can be offered provided there is any scope therefor.

A clarification may be made where the same is needed.

We will assume that despite the amendments made by the Code of

Civil Procedure (Amendment) Act, 1976, amendment of pleadings being

procedural in nature, the same should be liberally granted but as in all other

cases while exercising discretion by a the court of law, the same shall be

done judiciously.

24.In this case, respondent No.6 accepted the case of the appellant in its

entirety. It went to the extent of accepting the plea of the appellant that his

suit, claiming half share in the property left by his father, may be decreed.

Each and every contention of the plaintiff-appellant was accepted by

respondent No.6. The only explanation which could be offered by her was

that the purported admission had been taken from her by playing fraud on

her and she, therefore, was not bound thereby.

25.If, she had not engaged Shri Vasudeva as her advocate or had not put

her signature on the written statement, the purported contention contained in

her written statement filed on 30.3.2000 might not constitute ‘admission’ in

the eyes of law. In such a situation, in law, she must be held to have not

filed any written statement at all. It was bound to be taken off the records

and substituted by a written statement which was properly and legally filed.

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Such a contention raised on the part of respondent No.6 having been

rejected by the learned Trial Judge as also by the High Court, in our

opinion, the submission of Mr. Verma that she should be permitted to

explain her admissions does not and cannot arise.

26.We are herein concerned with her right to maintain an application for

an amendment of the written statement when her second written statement

has not been accepted. Submission of Mr. Verma that in any event other

respondents having denied and disputed the genuineness of the Will and an

issue in that behalf having been framed, the appellant in no way shall be

prejudiced if the amendment of the written statement be allowed, cannot be

accepted. In support of the said contention, strong reliance has been placed

by Mr. Verma on Dondapati Narayana Reddy v. Duggireddy

Venkatanarayana Reddy & Ors. [(2001) 8 SCC 115]. This Court therein

was concerned with filing of additional written statement. This Court

therein was not concerned with a case where a party to the suit was resiling

from the admissions made by him earlier. In that case, the plaintiff was

claiming title of 1/3

rd

share in the property. During the pendency of the suit,

permission was sought for adducing additional evidence to prove the

testamentary succession by producing the registered Will dated 20.8.1984.

The said application was allowed. A revision application filed thereagainst

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was also allowed. The first defendant, as a retaliatory measure, sought for

an amendment questioning the legality of said Will dated 20.8.1994 which

was dismissed. The revision application filed thereagainst as also the

application for adduction of additional evidence filed by defendant No.1

was disposed of by an order impugned before this Court. It were in the

aforementioned fact situation, it was Court observed :

“9. Rules governing pleadings and leading of

evidence have been incorporated to advance the

interests of justice and to avoid multiplicity of

litigation. If the claim of the plaintiff Dondapati

Narayana Reddy is based upon the will dated 20-

8-1994 executed by Dondapati Tirumala

Ramareddy, the defendant-appellant has a right to

seek the amendment of his written statement

incorporating the plea sought to be introduced by

way of proposed amendment. Such a prayer cannot

be denied on hypertechnical grounds. The

amendment should, generally, be allowed unless it

is shown that permitting the amendment would be

unjust and result in prejudice against the opposite

side which cannot be compensated by costs or

would deprive him of a right which has accrued to

him with the lapse of time. Amendment may also

be refused, if such a prayer made separately, is

shown to be barred by time. Neither the trial court

nor the High Court has found the existence of any

of the circumstances justifying the rejection of the

prayer for amendment of the written statement.

Whether or not the amendment is allowed, the trial

court is otherwise obliged to decide the validity of

the disputed will which is the basis of the suit filed

by the plaintiff. We are of the opinion that the

courts below were not justified in rejecting the

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prayer of the defendant seeking amendment of his

written statement.

10. In view of the fact that the validity of the will

was sought to be challenged by way of

amendment, the plaintiff acquired a right to lead

evidence to prove its authenticity. Otherwise also

when the basis of the suit was the will dated 20-8-

1994, the interests of justice demanded that the

plaintiff should have been allowed an opportunity

to lead additional evidence to prove its validity.”

The said decision, therefore, is not applicable to the facts and

circumstances of the present case.

27.It may be true that even in this case, the Trial Court was bound to

determine the issue in regard to the validity of the Will dated 23.9.1999, but

such an issue has not been and cannot be raised at the instance of

respondent No.6. The decision, therefore, cannot have any application in

the instant case.

28.We, therefore, are of the opinion that in the facts and circumstances

of the case, the impugned judgment cannot be sustained. It is set aside

accordingly. The Appeal is allowed with no order as to costs.

……………..…………J.

[S.B. Sinha]

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.………………….……J.

[V.S. Sirpurkar]

New Delhi

March 7, 2008

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