The High Court dismissed the writ petition challenging the trial court's rejection of an amendment application. The court held that a party cannot withdraw a clear judicial admission made in the plaint to claim rights in property, even if supported by later evidence.
Writ petition dismissed without order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
kishor 1/6 5 wp 1970 of 18 as..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1970 OF 2018
Khwajasaheb Muktumahussain Bhaldar ...Petitioner Versus Babu Abbas Desai ...Respondent
Ms. Anusha Pravin Amin , for Petitioner. Mr. Mandar Limaye, for Respondent.
CORAM: SANDEEP V. MARNE, J. DATE : JULY 27, 2023.
P.C.:
By this petition, Petitioner challenges order dated September 01, 2017 passed by the Jt. Civil Judge, Junior Division, Miraj rejecting PetitionerPlaintiff’s application for amendment of the plaint.
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married Mohammed Hanif Desai, resident of Kundargi Taluka-Gokak and the couple had two sons Babu (Defendant) and Maula and two daughters Sahebabi and Ayesha. That after death of her husband, Jaitunbi left her house at Kundargi, Taluka-Gokak and settled down at Miraj. That at Miraj she started residing with Abaas Pashasaab Desai without marrying him. That Abaas Pashasaab Desai had merely provided support to Jaitunbi, without marrying her.
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“23. Delay in itself may not be Crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen
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that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others, (1974) 1 SCC 242.
To quote Paragraph-27:
“27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions if true and clear are far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case stand on higher footing than evidentiary admissions. The farmer 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 other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”
(Emphasis supplied).
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“ 37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.
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the wedlock between Aabbas Pashasaab Desai and Jaitunbi. This stand take by the Petitioner-Plaintiff will have to prove by producing evidence. The issue whether Aabbas was working in Railway administration and who else (apart from Abbas) is the father of Jaitunbi’s children would accordingly become irrelevant.
(SANDEEP V. MARNE, J.)
Digitally signed by KISHOR KISHOR VISHNU VISHNU KAMBLE KAMBLE Date: 2023.08.01 12:20:09 +0530
2 issues framed by the court
Whether a party can withdraw a clear judicial admission made in the plaint by way of an amendment application.
Whether the trial court erred in rejecting the amendment application on the ground of contradiction with earlier pleadings.
Colour shows how this judgement treated each authority
Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria , (2015) 6 All MR 416Referred¶18
Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others, (1974) 1 SCC 242Referred¶19
Gautam Sarup , [2008 ALLSCR 1678]Referred¶25
Panchdeo Narain Srivastava (supra)Distinguished¶25
Ganesh Prasad Vs. Rajeshwar Prasad & Ors, 2023 SCC OnLine SC 256Distinguished¶28
Khwajasaheb Muktumahussain Bhaldar
Babu Abbas Desai
Sandeep V. Marne
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
