REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1808        OF 2008 (Arising out of SLP (C) No.18511 of 2006)

Gautam Sarup … Appellant

Versus

Leela Jetly & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. One Shanti Sarup executed a Will.  Respondents 1, 2, 3 and 6 are his

daughters.   Respondent  No.7  Ritu  Sarup  is  the  daughter  of  Respondent

No.2.  She had an accidental fall and became handicapped.

3. The  Will  was  executed  on  or  about  23.9.1999  bequeathing  his

properties in equal shares to the appellant and the said Ritu Sarup.

4. Appellant filed a suit in the Court of Civil Judge (Senior Division),

Ludhiana, inter alia, for declaration of his title to the suit properties and for

a decree of permanent injunction.   

Respondent No.6 Leela Jetlley, on being served with  the summons

appeared through one Shri M.P. Vasudeva, Advocate.  She filed a written

statement admitting the averments made in the plaint.   

5. A counter claim was filed by Respondent Nos.1 to 5.  In their written

statement,  they did  not  deny or  dispute  execution  of  the  Will  by Shanti

Sarup.   

6. Respondent No.6, however, filed another written statement denying

and  disputing  the  claim  of  the  appellants  in  toto.   She  also  filed  an

application on 28.8.2000 for permission to take the first written statement

off the records and to file another written statement on the premise that she

had not  engaged  the  said  M.P.  Vasudeva,  nor  had  she  filed  any written

statement through him.  She denied and disputed her signatures appearing

on  the said  written  statement.   The said application  was  allowed by the

learned Trial Judge.

7. A revision  petition  was  filed  by  the  appellant  thereagainst.   By a

judgment and order dated 15.3.2002, the High Court, while setting aside the

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said order of the learned Trial Judge dated 12.9.2001 directed it to hold an

enquiry at the first instance as to whether the respondent No.6 ever engaged

Mr. Vasudeva,  Advocate  or ever  signed the written statement  which had

been placed on record.  It was directed that in the event the findings of the

said enquiry go in her favour, it will be open to her to file the second written

statement or the one which has been filed by her may be accepted.  It was,

however, observed :

“Of course, I am not depriving Smt. Jetly to file an application under Order VI Rule 17 CPC in case the  findings  are  given  against  Smt.  Leela  Jetly regarding filing of earlier statement.”

8. Pursuant  to or in furtherance of the said direction,  an enquiry was

held and it was opined that respondent No.6 had, in fact, appointed the said

Shri Vasudeva as her lawyer and filed her written statement on 30.3.2000.

A revision application was filed thereagainst by the respondent No.6 which

by reason of an order dated 7.4.2004, was dismissed by the High Court.

9. An  application  for  amendment  was  thereafter  filed  by  her  on

5.11.2004 which was allowed by the learned Trial Court by an order dated

23.2.2005.   Appellant  moved  the  High  Court  invoking  its  revisional

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jurisdiction  and  by  reason  of  the  impugned  judgment  the  same  was

dismissed opining :

“Thus, I am of the opinion that the plaintiff is not prejudiced  in  any  manner  while  allowing defendant  No.6  to  amend  the  written  statement. The burden of proving the Will is to be discharged by the plaintiff in any case.  Whether admissions contained in the written statement dated 30.3.2000 were relevant for proof of Will or such admissions were made erroneously or under mistaken belief or misrepresentation  or  such  admissions  are conclusive, are the questions which can be decided only after  defendant  No.6 is  permitted to  amend the written statement.  It is a disputed question of fact  which  cannot  be  decided  at  the  stage  of deciding the application for amendment of written statement  whether  admissions  in  the  written statement  dated  30.3.2000  are  conclusive  and binding on defendant No.6 and to what extent.”

10. Mr. Sudhir  Chandra, learned senior counsel  appearing on behalf of

the appellant, would submit :

1. Respondent  No.6,  in  view  of  admissions  contained  in  her  written

statement filed on 30.3.2000 , could not have been permitted to resile

therefrom.

2. She,  having failed in her  attempt to set  up a plea that  she had not

engaged Shri Vasudeva as a lawyer and did not put her signature on

the written statement, should not have been permitted to amend the

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written statement, in view of the fact that she was an attesting witness

to the Will and claimed a benefit thereunder.

11. Mr.  M.L.  Verma,  learned  senior  counsel  appearing  on  behalf  of

Respondent No.6, on the other hand, submitted  

(a) Admission being an evidence against a person making the same, the

onus would be on him to show that it was made under some mistake

or  otherwise  and,  thus,  the  amendment  of  written  statement  is

permissible in law.   

(b) Apart  from Respondent  No.6,  six  other  defendants  had  denied  or

disputed the correctness of the Will pursuant whereto an issue was

framed  and  as  such  the  question  as  to  whether  she  made  any

admission in her first written statement or not is wholly academic.   

(c) Although  a  person  making  admission  should  not  ordinarily  be

permitted to resile therefrom, there does not exist any bar to explain

such admission or clarify the same and in that view of the matter such

portion of the application for amendment of written statement, which

seeks  to  explain  the  admission  and/or  clarify  the  same should  be

permitted to be retained.

12. Order VI Rule 17 of the Code of Civil Procedure reads, thus :

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17. Amendment of pleadings—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on  such  terms  as  may  be  just,  and  all  such amendments  shall  be  made as  may be  necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that is spite of due diligence, the party could not have raised the matter before the commencement of trial.”

13. An admission made in  a pleading is  not  to  be treated  in  the  same

manner as an admission in a document.  An admission made by a party to

the lis is admissible against him proprio vigore.   

14. In State of Haryana & Ors. v.  M.P. Mohla [(2007) 1 SCC 457] this

Court stated :

“25. The law as regards the effect of an admission is also no longer res integra. Whereas a party may not be permitted to resile from his admission at a subsequent  stage  of  the  same  proceedings,  it  is also trite that an admission made contrary to law shall not be binding on the State.”

15. A thing admitted in view of Section 58 of the Indian Evidence Act

need not  be proved.   Order VIII  Rule  5  of  the Code of  Civil  Procedure

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provides  that  even  a  vague  or  evasive  denial  may  be  treated  to  be  an

admission  in  which  event  the  court  may pass  a  decree  in  favour  of  the

plaintiff.   Relying on or on the basis thereof a suit,  having regard to the

provisions of Order XII Rule 6 of the Code of Civil Procedure may also be

decreed on admission.  It is one thing to say that without resiling from an

admission, it would be permissible to explain under what circumstances the

same had been made or it was made under a mistaken belief or to clarify

one’s stand inter alia in regard to the extent or effect of such admission, but

it  is  another  thing to  say that  a person can be permitted to  totally resile

therefrom.   

The decisions of this Court unfortunately in this regard had not been

uniform.  We would notice a few of them.

16. A Three Judge Bench of this Court speaking through Ray, CJ in Modi

Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co. [(1976) 4

SCC 320] opined :

“10.  It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25  and  26  is  not  making  inconsistent  and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments  are  allowed  the  plaintiff  will  be irretrievably  prejudiced  by  being  denied  the opportunity of extracting the admission from the

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defendants.  The  High  Court  rightly  rejected  the application  for  amendment  and  agreed  with  the trial court.”

17. A  Two  Judge  Bench  of  this  Court,  without  noticing  the  binding

precedent in Modi Spinning (supra), in Panchdeo Rarain Srivastava v. Km.

Jyoti Sahay & Anr. [1984 Supp. SCC 594], stated :

“But  the  learned  counsel  for  the  respondents contended that by the device of amendment a very important  admission  is  being  withdrawn.   An admission made by a party may be withdrawn or may be  explained  away.  Therefore,  it  cannot  be said  that  by  amendment  an  admission  of  fact cannot be withdrawn.”

Yet  again,  in  Akshaya  Restaurant v.  P.  Anjanappa  &  Anr. [1995

Supp.(2) SCC 303], the following observations were made by the Court :

“We find no force in the contention.  It is settled law that even the admission can be explained and even  inconsistent  pleas  could  be  taken  in  the pleadings.  It is seen that in para 6 of the written statement  a  definite  stand  was  taken  by subsequently in the application for amendment it was  sought  to  be  modified  as  indicated  in  the petition. In that  view of the matter,  we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 CPC in permitting amendment of the written statement.”

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[See also  Basavan Jaggu Dhobi v.  Sukhnandan Ramdas Chaudhary [1995

Supp. (3) 179]

18. The  question  came  up  for  consideration  before  another  Division

Bench  in  Heeralal v.  Kalyan  Mal  & Ors. [(1998)  1  SCC 278],  wherein

noticing  the  aforementioned  decisions,  Modi  spinning’s decision  was

followed.  Akshaya Restaurant (supra) was held to have been rendered per

incuriam.

Other  decisions  which  were  cited  at  the  Bar  were  distinguished

stating:

“10.  Consequently it  must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff’s case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by the latter Bench of two learned Judges  and  to  the  extent  to  which  the  latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam  being  rendered  without  being  given an opportunity to consider the binding decision of a three-member  Bench  of  this  Court  taking  a diametrically opposite view.  

11. We were then taken to another decision of this Court in the case of  Panchdeo Narain Srivastava v.  Jyoti Sahay. In that case the plaintiff was held entitled  to  amend  his  plaint  by  submitting  that though  earlier  he  stated  that  the  defendant  was uterine brother, the plaintiff by amendment in his plaint  could  submit  that  the  defendant  was  his

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brother and the word “uterine” could be dropped. Even in that case the main case put forward by the plaintiff  did  not  get  changed  as  the  plaintiff wanted  to  submit  that  the  defendant  was  his brother.  Whether  he  was  uterine  brother  or  real brother was a question of degree and depended on the nature of evidence that may be led before the Court.  Therefore,  the  deletion  of  the  word “uterine”  was  not  found  to  be  displacing  the earlier  case  of  the  plaintiff.  On the  facts  of  the present  case  also,  therefore,  the  said  decision cannot be of any assistance to the learned counsel for the respondents.  

12. In our view, therefore, on the facts of this case and as discussed earlier, no case was made out by the  respondents,  contesting  defendants,  for amending  the  written  statement  and  thus attempting to go behind their admission regarding 5  out  of  7  remaining  items  out  of  10  listed properties in Schedule A of the plaint.”

19. Hiralal (supra)  has  been  recently  noticed  by  this  Court  in

Sangramsinh P. Gaekwar & Ors. v. Shantadevi P. Gaekwad (Dead) through

LRs. & Ors. [(2005) 11 SCC 314], wherein it is stated :

“215.Admissions  made  by  Respondent  1  were admissible against her proprio vigore.  

216. In Nagindas Ramdas v. Dalpatram Ichharam this Court held :  

“... Admissions if true and clear, are by far the  best  proof  of  the  facts  admitted. Admissions  in  pleadings  or  judicial admissions, admissible under Section 58 of

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the  Evidence  Act,  made  by  the  parties  or their agents at or before the hearing of the case,  stand  on  a  higher  footing  than evidentiary admissions. The former class of admissions  are  fully  binding  on  the  party that makes them and constitute a waiver of proof. They by themselves can be made the foundation  of  the rights  of  the parties.  On the  ot  her  hand,  evidentiary  admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”  

(See also Bishwanath Prasad v. Dwarka Prasad.)  

217.  In  Viswalakshmi  Sasidharan  v.  Branch Manager, Syndicate Bank this Court held :   

“On the other hand, it is admitted that due to slump in the market they could not sell the goods,  realise  the  price  of  the  finished product and pay back the loan to the Bank. That admission stands in their way to plead at the later stage that they suffered loss on account of the deficiency in service.”  

218.  Judicial  admissions  by  themselves  can  be made the foundations of the rights of the parties.”

Modi spinning (supra) and Hiralal (supra) were followed therein.

Yet again in Union of India v. Pramod Gupta (Dead) by LRs. & Ors.

[(2005) 12 SCC 1] this Court held :

“Before an amendment can be carried out in terms of Order 6 Rule 17 of the Code of Civil Procedure the court is required to apply its mind on several

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factors  including viz.  whether  by reason of such amendment the claimant intends to resile from an express admission made by him. In such an event the  application  for  amendment  may  not  be allowed. (See Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co.,  Heeralal  v.  Kalyan Mal  and Sangramsinh  P.  Gaekwad  v.  Shantadevi  P. Gaekwad)”

20. We may, at this stage, notice some decisions of this Court whereupon

strong reliance has been placed by Mr. Verma.   

In Punjab National Bank v. Indian Bank & Anr. [(2003) 6 SCC 79],

this  Court  opined that  an  application  for  amendment  may be allowed to

clarify the relief which had been prayed for even in the plaint, particularly,

when no prejudice in this behalf would be caused to the other party to the

lis.

In  Rajesh Kumar Aggarwal & Ors. v.  K.K. Modi & Ors. [(2006) 4

SCC 385], while emphasizing on the underlined principles of Order VI Rule

17 of the Code of Civil Procedure, it was held :

“15. The object of the rule is that the courts should try the merits  of the case that come before them and should,  consequently,  allow all  amendments that  may  be  necessary  for  determining  the  real question  in  controversy  between  the  parties provided it does not cause injustice or prejudice to the other side.  

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16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the  court  to  order  amendment  of  pleading.  The second part  is  imperative (shall)  and enjoins  the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.  

17.  In  our  view, since the  cause  of  action  arose during  the  pendency  of  the  suit,  proposed amendment  ought  to  have  been  granted  because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.  

XXX XXX XXX

20. … The court always gives leave to amend the pleadings of a party unless it is satisfied that the party  applying  was  acting  mala  fide.  There  is  a plethora  of  precedents  pertaining  to  the grant  or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the  proposition  laid  down  therein  are  widely known. This Court  has consistently held that  the amendment  to  pleading  should  be  liberally allowed  since  procedural  obstacles  ought  not  to impede the dispensation of justice.”

These decisions for the reasons stated supra are not applicable in the

instant case.   

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21. Recently, in Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami

& Ors. [(2007) 5 SCC 602], this Court observed :

“26. Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case  of  washing  out  admission  made  by  the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the  admissions  intact  and  only  added  certain additional  facts  which  need to  be proved by the plaintiff and Defendants 2 to 8 to get shares in the suit  properties  alleged to  have been admitted  by the  appellants  in  their  written  statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of the plaintiff and Defendants 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao. Therefore, it must be held that in view of our discussions made hereinabove, the High Court was not justified in reversing the order  of  the  trial  court  and  rejecting  the application  for  amendment  of  the  written statement.”

22. What, therefore, emerges from the discussions made hereinbefore is

that a categorical admission cannot be resiled from but, in a given case, it

may  be  explained  or  clarified.   Offering  explanation  in  regard  to  an

admission or explaining away the same, however, would depend upon the

nature and character thereof.  It may be that a defendant is entitled to take an

alternative  plea.   Such  alternative  pleas,  however,  cannot  be  mutually

destructive of each other.

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23. An explanation can be offered provided there is any scope therefor.

A clarification may be made where the same is needed.   

We will assume that despite the amendments made by the Code of

Civil  Procedure (Amendment)  Act,  1976,  amendment  of  pleadings  being

procedural in nature, the same should be liberally granted but as in all other

cases while exercising discretion by a the court of law, the same shall be

done judiciously.   

24. In this case, respondent No.6 accepted the case of the appellant in its

entirety.  It went to the extent of accepting the plea of the appellant that his

suit, claiming half share in the property left by his father, may be decreed.

Each  and  every  contention  of  the  plaintiff-appellant  was  accepted  by

respondent No.6.  The only explanation which could be offered by her was

that the purported admission had been taken from her by playing fraud on

her and she, therefore, was not bound thereby.   

25. If, she had not engaged Shri Vasudeva as her advocate or had not put

her signature on the written statement, the purported contention contained in

her written statement filed on 30.3.2000 might not constitute ‘admission’ in

the eyes of law.  In such a situation, in law, she must be held to have not

filed any written statement at all.  It was bound to be taken off the records

and substituted by a written statement which was properly and legally filed.

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Such  a  contention  raised  on  the  part  of  respondent  No.6  having  been

rejected  by  the  learned  Trial  Judge  as  also  by  the  High  Court,  in  our

opinion,  the  submission  of  Mr.  Verma  that  she  should  be  permitted  to

explain her admissions does not and cannot arise.   

26. We are herein concerned with her right to maintain an application for

an amendment of the written statement when her second written statement

has not been accepted.  Submission of Mr. Verma that in any event other

respondents having denied and disputed the genuineness of the Will and an

issue in that behalf having been framed, the appellant in no way shall  be

prejudiced if the amendment of the written statement be allowed, cannot be

accepted.  In support of the said contention, strong reliance has been placed

by  Mr.  Verma  on  Dondapati  Narayana  Reddy v.  Duggireddy

Venkatanarayana Reddy & Ors. [(2001) 8 SCC 115].  This Court  therein

was  concerned  with  filing  of  additional  written  statement.   This  Court

therein was not concerned with a case where a party to the suit was resiling

from the admissions made by him earlier.   In that  case,  the plaintiff  was

claiming title of 1/3rd share in the property.  During the pendency of the suit,

permission  was  sought  for  adducing  additional  evidence  to  prove  the

testamentary succession by producing the registered Will dated 20.8.1984.

The said application was allowed.  A revision application filed thereagainst

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was also allowed.  The first defendant, as a retaliatory measure, sought for

an amendment questioning the legality of said Will dated 20.8.1994 which

was  dismissed.   The  revision  application  filed  thereagainst  as  also  the

application  for  adduction  of  additional  evidence  filed  by defendant  No.1

was disposed of by an order impugned before this Court.   It were in the

aforementioned fact situation, it was Court observed :

“9.  Rules  governing  pleadings  and  leading  of evidence  have  been  incorporated  to  advance  the interests  of  justice  and  to  avoid  multiplicity  of litigation.  If  the claim of the  plaintiff  Dondapati Narayana Reddy is based upon the will dated 20- 8-1994  executed  by  Dondapati  Tirumala Ramareddy, the defendant-appellant has a right to seek  the  amendment  of  his  written  statement incorporating the plea sought to be introduced by way of proposed amendment. Such a prayer cannot be  denied  on  hypertechnical  grounds.  The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side  which  cannot  be  compensated  by  costs  or would deprive him of a right which has accrued to him with the lapse of time. Amendment may also be  refused,  if  such  a  prayer  made  separately,  is shown to be barred by time. Neither the trial court nor the High Court has found the existence of any of the circumstances justifying the rejection of the prayer  for  amendment  of  the  written  statement. Whether or not the amendment is allowed, the trial court is otherwise obliged to decide the validity of the disputed will which is the basis of the suit filed by the  plaintiff.  We are  of  the  opinion  that  the courts  below  were  not  justified  in  rejecting  the

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prayer of the defendant seeking amendment of his written statement.

10. In view of the fact that the validity of the will was  sought  to  be  challenged  by  way  of amendment,  the plaintiff  acquired a right  to lead evidence to prove its authenticity. Otherwise also when the basis of the suit was the will dated 20-8- 1994,  the  interests  of  justice  demanded  that  the plaintiff should have been allowed an opportunity to lead additional evidence to prove its validity.”  

The  said  decision,  therefore,  is  not  applicable  to  the  facts  and

circumstances of the present case.

27. It may be true that even in this case, the Trial Court was bound to

determine the issue in regard to the validity of the Will dated 23.9.1999,  but

such  an  issue  has  not  been  and  cannot  be  raised  at  the  instance  of

respondent No.6.  The decision, therefore, cannot have any application in

the instant case.  

28. We, therefore, are of the opinion that in the facts and circumstances

of  the  case,  the impugned judgment  cannot  be sustained.   It  is  set  aside

accordingly.  The Appeal is allowed with no order as to costs.

……………..…………J. [S.B. Sinha]

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               .………………….……J.        [V.S. Sirpurkar]

New Delhi March 7, 2008

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