TATIA, J. - (1.) HEARD learned counsel for the parties. Perused the impugned order by which application under order 6 Rule 17 of the defendant-non-petitioner was allowed by the trial court.
(2.) THE defendant submitted an application for amendment of the written statement wherein the defendant-non-petitioner stated that the land in dispute was originally belonging to his father and his father has also received the above land in succession and in exchange of the land, therefore, in view of the nature of the title of the property and succession, the defendant is not the sole owner of the property and delendant's sons and daughters are also having their shares in the property. It is stated by the defendant that the defendant is illeterate person and was not having the knowledge of the legal position and he has no knowledge that he alone had no right to sell the property and when the sons of the defendant raised objection he came to know about this position. According to defendant the admission made earlier was due to want of knowledge and, therefore, the amendment is necessary. THE defendant prayed that defendant may be permitted to amend the written statement. The plaintiff-petitioner objected to the amendment and the main thrust of the argument of the learned counsel for the petitioner is that the defendant cannot be permitted to withdrawn the admission. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Apex Court delivered in M/s. Modi Spinning & Weaving Mills Co. Ltd. & Anr. vs. M/s. Ladha Ram & Co. (1), wherein the Hon'ble Apex Court held that defendant cannot be allowed to change completely the case made out in the written statement and substitute entirely different and a new case. Another judgment relied upon by the learned counsel for the petitioner is the judgment of the Hon'ble Apex Court delivered in Heera Lal vs. Kalyan Mal and Ors. (2), wherein the Hon'ble Apex Court considered the judgment of the Modi Spg. & Wvg. Mills Co. Ltd. (supra) and also considered the judgment of the Hon'ble Apex Court delivered in Akshaya Restaurant vs. P. Anjanappa (3), another judgment delivered in Basavan Jaggu Dhobi vs. Sukhnandan Ramdas Choudhary (4), and another judgment delivered in Panchdeo Narain Srivastava vs. Jyoti Sahay After considering all above judgments the Hon'ble Apex Court held that amendment sought in the written statement was of such a nature so as to displace the plaintiff's case therefore, it could not be allowed. The Hon'ble Apex Court in the judgment of Heera Lal (supra) even held that the latter decision took a contrary view is per incuriam being rendered without being an opportunity to consider the binding decision of a three-member Bench of the Apex Court. Learned counsel for the petitioner submitted that after considering judgment of the Heera Lal's case (Supra), this court also held that amendment cannot be permitted, which did not displace the party from the admission in judgment delivered in Vaidhya S. S. Joshi vs. Jain V. B. Learned counsel for the respondent-defendant relied upon the judgment of Basavan Jaggu Dhobi vs. Sukhnandan Ramdas Choudhary (supra), which was also considered by the Hon'ble Apex Court in the judgment of Heera Lal's case (supra) and learned counsel for the respondent relied upon the judgment of Hon'ble Apex Court delivered in M/s. Estralla Rubber vs. Dass Estate (Private) Ltd. After considering all above arguments, it is relevant to mention the facts of the case, which shows that the present suit was filed for specific performance of contract by the plaintiff wherein the title of the property is not relevant and, particularly, in this case when defendant stated that the above property is ancestral property having share of their co-sharers even then this aspect of the matter cannot be made subject matter in the suit for specific performance of contract because of more than one reasons, namely, that none of the other co-sharer is a party and could not have been party in the present suit and in view of the fact that in a suit for specific performance the court is required to pass the decree for specific performance and what will be pass by execution of the decree of specific performance of contract that will be available to the decree holder. The scope of the suit cannot be permitted to enlarge for holding enquiry where the suit property is ancestral property or self acquired property of the proposed seller. Therefore, it appears that above amendment is not even necessary for the purpose of just decision of the present suit. This aspect was not considered by the trial court. The matter was pending for the evidence of the defendant and, at that time, thus application was submitted by the defendant by which the defendant wanted to withdraw his admission and wanted to putforward a case, which will seriously prejudice the trial of the suit and will enlarge the scope of the enquiry in the suit. Therefore, in the facts and circumstances of this case, the order passed by the trial court cannot be allowed to stand permitting amendment of the written statement to the defendant.
(3.) HENCE, the revision petition is allowed. The order dated 10. 07. 2001 is set aside and application for amendment of the written statement is dismissed. .;