Shiv Kumar Sharma, J. - (1.) - Core question which arises for determination in this revision is as to whether an admission made in the pleadings, by a party, can be withdrawn or explained away by amendment
(2.) The question has emerged in the circumstances set out herein below: (i) A suit for partition of immovable property was instituted by plaintiff non-petitioner No. 1 (for short plaintiff) against the defendant-petitioners (for short defendants) and non-petitioners (for short defendants) and non-petitioner Nos. 2 to 15 in the trial Court stating herein that the defendants were real brothers and non-petitioner Smt. Ghisibai, Smt. Mohinibai and Smt. Sohinibai were the widows and daughters of their predeceased Birdhilal. The defendants and the ladies mentioned hereinabove were the members of the Joint Hindu Family which owned immovable property consisting of houses, plots and agricultural lands. Defendant Kalyan Mal being Karta of Joint Hindu Family was managing the properties in that capacity. He had been keeping tenants and managing for the cultivation of the agricultural lands and receiving its income. Plaintiff further stated in the plaint that being employee in the Medical Department, he had to remain out of the Keshorai-Patna. On January 15, 1993 plaintiff asked defendant Kalyan Mal to appraise him about the income and expenditure of the immovable properties but defendant Kalyan Mal refused to give any account to him. The plaintiff sought relief of petition of the immovable property and possession of his share in the property. It was further, prayed that his name be entered in revenue records and defendants be asked to explain the account of the income accrued in revenue records and defendants be asked to explain the account of the income accrued from the land for period of last three years and his share of income be ordered to be paid to him. Prayer for appointing the receiver on the said property was also made. (ii) The defendants submitted the written statement and as many as six issues were framed on April, 21, 1994. Thereafter, the case was posted for recording the evidence of the plaintiff. (iii) On July 6, 1996 defendants Kalyan Mal moved an application under Order 6, Rule 17 Civil Procedure Code. for amendment of written statement stating therein that he could not apply correct information to his Counsel being an infirm old man. It was stated in the amendment application that the properties enumerated in items No. 1, 2, 3, 4, 6, 8, 9 and 10 of Schedule I appended with the plaint were the properties of the defendants and remaining properties were joint. Lands comprised in Khasra Nos. 968 and 969 enumerated in item No. 1 of Schedule B-a annexed with plaint wherein possession of the trespassers prior to filing of the suit for partition by the plaintiff and the lands had been sold to those trespassers. The properties enumerated at item Nos. 3 and 4 of schedule B-a, were not entered in the Khatedari of plaintiff and as such he was not entitled to claim any partition. As correct information could not be supplied at the time of filing of written statement, the properties enumerated at items No. 4, 9, and 10 of schedule A-a, annexed with the plaint were stated as personal property of the defendants which were not correct. As a matter of facts, properties enumerated in item Nos. 1, 2, 3, 4, 6, 8, 9, and 10 of schedule A-a, annexed with the plaint, were the personal properties of the defendants. On the basis of a said averment it was prayed that it has become necessary to re-write the para No. 2 of the written statement as stated in the amendment application and a prayer was made for granting permission to amend the written statement which was necessary to be granted in order to adjudicate all controversies between the parties.
(3.) The plaintiff filed reply denying the averments made in the application. It was stated in the reply that the defendants wanted to prolong the litigation. The defendants cannot be permitted to withdraw, the admissions already made by them in the written statement. (i) The learned trial Court vide order dated August 5, 1996 dismissed the application. Against the said order revision petition bearing No. 1209/96 was preferred by the defendants. This Court vide order dated September 4, 1996 issued notices to the non-petitioner and stayed the proceedings of civil suit pending before the learned trial Court. (ii) The case was posted in the trial Court on September 4, 1996 itself and obviously the trial Court did not have the knowledge of the order passed by this Court. Therefore, application for appointing the receiver moved by the plaintiff was allowed. (iii) The defendants assailed the said order by preferring S.B. Civil Misc. Appeal No. 941/96. As S.B. Civil Misc. Revision No. 1209/96 and Misc. Appeal both relate to the suit for partition between the parties, therefore, both are proposed to be disposed of by a common judgment.;