NATHU RAM Vs. RAM CHANDER AND ORS.

JUDGEMENT

(1.) THE challenge in the present revision petition is to the order dated 19.09.2000 passed by the learned trial Court, whereby an application filed by defendant No.6 for filing the written statement on his behalf, was declined.

(2.) AS per the case set up, the present petitioner (defendant No.6) is stated to have suffered a decree in favour of his daughter on 19.07.1989. Thereafter, defendant No.5, daughter of defendant No.6, suffered another decree in favour of her nephew i.e. another son of defendant No.6, on 27.09.1995. The present suit for declaration was filed on 06.01.1998 challenging the consent decree suffered by defendant No.6 on 19.07.1989 and the consequent decree dated 27.09.1995 suffered by defendant No.5. In the said suit, a written statement was filed on behalf of defendant Nos.5 and 6 admitting the claim of the plaintiff. Later on, when defendant No.6 appeared as witness as DW1, he denied the filing of the written statement alongwith his daughter Krishna. Thereafter, the present application was filed for filing a written statement on the ground that he has never engaged Sh.Jitender Thakar as his counsel neither he had instructed him to file the written statement on his behalf. In fact, his signature were obtained by plaintiffs counsel on blank paper when he went to Fatehabad and the written statement has been prepared on the blank papers.

(3.) THE finding recorded by the learned trial Court that defendant No.6 has not been able to show as to whether signatures were obtained on the blank papers by the counsel cannot be accepted as in fact no opportunity was granted to the defendant No.6 to prove such fact. Such fact could be proved by defendant No.6 only if he was permitted to file written statement subject to the proof of the fact that first written statement was not filed with intention of filing of such written statement. In ", (1991)100 PLR 266, Gujjar Singh v. Gulzar Singh," this Court has permitted the defendant to amend the written statement which has the effect of withdrawing the admission. It was found that the admission earlier made in the written statement was apparently erroneous and on assumed facts and in such a situation a party cannot be refused to amend its pleadings. Similarly, in, 1991 CCC 419 (P&H):, (1991)100 PLR616, Kehar Singh v. Balraj Singh and another, this Court permitted the plaintiff to amend the plaint as it was found that if the plaintiff is not given opportunity to back out of the wrong admission, he would not be able to show that the admission was wrong. ", 1992(2) RLR 11, Mukhtiar Kaur & Piar Kaur v. Jarnail Singh, was a case where the defendant filed a written statement admitting the claim of the plaintiff. The statement of the defendant was also recorded wherein he admitted the plaintiffs claim, but before the adjourned date of hearing, defendant died and his legal heirs made an application for brought on record as legal representatives of the deceased and subsequently filed an application for amendment of the written statement. In revision petition, this Court found that the learned trial Court should have gone into the question as to whether an imposter was put in place of the defendant to appear in the Court, filed the written statement and admitted the claim on behalf of the said defendant. The said question could either be decided in a fresh suit or in the said suit. This Court directed the trial Court to decide the question as to whether imposter was put in place of the defendant to file written statement or to make statement in the Court,