UMESH CHANDRA Vs. LAKSHMAN BABOO SADH

JUDGEMENT

(1.) BY this revision petition under Section 115 of the Code of Civil Procedure co -defendant revisionists challenge an order dated 15th October, 1987 whereby the Court below has allowed an amendment application of another co -defendant. I have heard the learned counsel for the revisionists and the learned counsel for respondent No. 1. No other respondent has put in appearance.

(2.) ONE Radhey Mohan Narain had four sons namely Sarvasri Lakshman Baboo, Satish Babu, Kalistor Mohan and Bir Jawahar. He is alleged to have executed a Will dated 16th July, 1979. After his death Bir Jawahar filed the suit in question challenging the execution of the Will and claiming accounting in respect of business. Lakshman Babu had filed a written statement contesting the plaint allegation and supporting the execution of the Will. The present revisionists who were defendants 2 and 3 in the suit also filed a written statement to the same effect.

(3.) SRI Yatindra Singh, learned counsel for the revisionists contended that by amending the written statement the defendant has withdrawn the admission made by him and that could not be done. He placed reliance on Jagan Nath v. Chandra Bhan : AIR 1988 S.C. 1362, in which in paragraph 4, it was held that where the proposed amendment introduced entirely a new case seeking to displace the other completely from the admission made, such an amendment could not be allowed. Reliance is also placed on Tula Ram v. IV Addl. District Judge, 1985 (2) ARC 428, in which this Court held that if by amendment the defendant wants to displace the plaintiff from the position of the admission made by the defendant earlier in the original written statement by setting up new case, such an amendment should not be allowed. Lastly, reliance is placed on Modi Spinning and Weaving Mills v. Ladha Ram and Co. : AIR 1977 SC 680, in which it was held that an amendment introducing entirely different new case and seeking to displace the plaintiff completely from the admission made by the defendant in the written statement could not be allowed.