Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendant and is directed against the Order No.28 dated November 1, 2006 passed by the learned Civil Judge (Junior Division), Additional Court, Lalbagh in Title Suit No.278 of 2005 thereby rejecting an application for amendment of the written statement.
(2.) THE plaintiff / opposite party herein instituted a suit for declaration, injunction and other reliefs. THE petitioner is contesting the said suit by filing a written statement denying the material allegations made in the plaint and the said suit was at the stage of cross-examination of the P.W.1. At that stage, the defendant / petitioner herein filed an application for amendment of the written statement and that application for amendment was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned advocate for the petitioner and on going through the materials on record, I find that the learned Trial Judge has rightly rejected the application for amendment of the written statement. Initially, the petitioner admitted certain facts with regard to the suit properties as described in Schedule Ka and Kha of the plaint in paragraph no.9 of the written statement. But, by the proposed amendment, the petitioner has wanted to withdraw those admissions made in the paragraph no.9 of the written statement. The amendment of the plaint and the amendment of the written statement are not in the same footing. The defendant is at liberty to take the alternative plea in the written statement. Even, the defendant may give explanation relating to the admission made earlier why she made the admission at the earlier stage. The amendment can be allowed provided the opponent, is not prejudiced or injustice is caused to the opponent. In the instant case, the suit was filed in the year 1998. The written statement was filed by the petitioner on August 6, 2003 and the said suit was at the stage of cross-examination of the P.W.1. No doubt that all amendments necessary for settlement of the dispute between the parties once for all, should be allowed. But, if the effect of amendment is the withdrawal of the admission and if it causes prejudice or injustice to the other side, the amendment should not be allowed.
(3.) IN the instant case, I find that by the proposed amendment, the petitioner had prayed for withdrawal of the admission made earlier in paragraph no.9 of the written statement and by the proposed amendment, she had prayed for substitution for the earlier written statement incorporating new facts. So, at the stage of cross-examination, that is, when the examination-in-chief was over, if the amendment is allowed, the plaintiff will be prejudiced. Moreover, altogether withdrawal of the admission by the proposed amendment is not permissible at all. The proposed amendment is not also in the nature of explanatory statement in support of his earlier admission, but, altogether, a new story deviating from her earlier statement. The learned Trial has, therefore, rightly rejected the application for amendment of the written statement.;