Writ petition challenging rejection of amendment to written statement in a suit for eviction. Court held replacing specific visit frequency with 'regularly' withdraws admission rather than explains it.
Writ petition deleted and dismissed.
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2023:BHC-AS:36359
34 Wp-3898-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3898 OF 2023
Una Fernandez. ...Petitioner. Versus
Vimla Soares. ...Respondent.
Mr. Aseem Naphade, Mr. Ameet Mehta, Ms. Monica Jagtap, Ms. Akanksha Mishra and Pravin Rhatwal i/b M/s. Solicx Lex for the petitioner. Mr. G. Shah, Mr. Pranav Chan i/b Mahesh Menon & Co., for the respondent.
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Coram : Sharmila U. Deshmukh, J. Date : December 5, 2023.
P. C. :
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younger son Keith Fernandes is working in Dubai and they both regularly pay visits once or twice a year . In paragraph 11, it is pleaded that the petitioner’s eldest son Clarance has not migrated to Singapore but is only working there and pays regular visits to the petitioner in the suit premises and that younger son Keith has not migrated to Dubai but is only working there and he regularly pays visits to the petitioner at the suit premises at least once in three months.
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Anjanappa [1995 Supp (2) SCC 303] .
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requirement of the family members of the petitioner vis-a-vis visit of of the sons to the suit premises will be an issue in consideration. Viewed from this angle, pleadings in the written statement which amount to an admission that as far as the younger son is concerned, he visits the suit premises once in three months will assume importance. I am, therefore, not inclined to accept the submission of learned counsel for the petitioner that by replacing the words “at least once in three months” with the word “regularly”, the admission is sought to be explained. On the contrary, by replacing the said words, there is no explanation tendered. Rather, an admission that visits of younger son is only once in three months is sought to be withdrawn and replaced with the word “regularly”, which has completely different connotation. There is no dispute about the proposition of law laid down by the Apex Court in Akshaya Restaurant (supra) , that an admission can be explained. But as rightly pointed out by learned counsel for the respondent, by the proposed amendment the admission is sought to be withdrawn and not explained.
[Sharmila U. Deshmukh, J.]
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2 issues framed by the court
Whethers an amendment to a written statement which seeks to replace 'at least once in three months' with 'regularly' amounts to explaining an admission or withdrawing it?
Whether the higher court was justified dismissing the writ petition challenging the trial court's order rejecting the proposed amendment?
Colour shows how this judgement treated each authority
Akshaya Restaurant v. P. AnjanappaReferred¶18
Akshaya Restaurant v. P. Anjanappa [1995 Supp (2) SCC 303] · Who else cites this
1 provisions across 1 enactments
Una Fernandez
Vimla Soares
Sharmila U. Deshmukh
As recorded by the court registry
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Sharmila U. Deshmukh
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