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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE  JURISDICTION

CIVIL APPEAL NO.                OF 2015 (Arising from S.L.P. (C) Nos. 31423-31424 /2010)

Ram Niranjan Kajaria … Appellant (s)   

Versus

Sheo Prakash Kajaria and others … Respondent (s)

WITH

CIVIL APPEAL NO.                OF 2015 (Arising from S.L.P. (C) Nos. 33891/2010)

Jugal Kishore Kajaria … Appellant (s)   

Versus

Sheo Prakash Kajaria and others … Respondent (s)

J U D G M E N T  

KURIAN, J.:

Leave granted.    

2. Whether  a  defendant  in  a  suit  for  partition  can  be

permitted  to  withdraw  an  admission  made  in  the  written

statement  after  a  pretty  long period,  is  the issue arising for

consideration in these cases.

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3. Partition Suit No. 696 of 1978, filed in the High Court of

Calcutta on Original Side, pertains to the partition of premises

No.6, Russel Street, Calcutta, originally belonging to one Motilal

Kajaria.  Defendant  Nos.  5  and  12  are  the  son  and  widow,

respectively,  of the predeceased son, viz.,  Mahabir Prasad of

Motilal Kajaria. In the Partition Suit, Defendant Nos. 5 and 12

filed a joint written statement on 16.08.1979, inter alia, stating

as under:  

“1. These defendants state that there is no cause of  action  against  these  defendants  and  these defendants are unnecessary parties and as such the  suit  against  these  defendants  should  be dismissed with costs,…

“a) xxx xxx xxx

b)  In  the  year  1942,  the  said  Mahabir  Prasad Kajaria, since deceased separated from his father Motilal  Kajaria  since  deceased  and  his  brothers, namely the defendants No. 1 to 4 in food, estate and business. Since his separation from his father and brothers the said Mahabir Prasad Kajaria was carrying on his independent business and holding his  own  separate  property.  The  said  “Mahabir Prasad Kajaria” also renounced all his interests in all the properties and assets of his father the said Motilal Kajaria since deceased.

c) These defendants state that neither of them is a co-sharer  for  the  Premises  No.  6,  Russel  Street, Calcutta  and  nor  they  have  any  right  title  or interest  whatsoever  in  the  said  premises.  These defendants  further  state  that  after  the  death  of Motilal  Kajaria  neither  of  these  defendants  had

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inherited  his  property  nor  business  as  the  said Mahabir  Prasad  separated  from  his  father  and brothers in 1942 and renounced all his rights, title and interest in the properties of the said Motilal Kajaria.”

4. Prior to the filing of the written statement, they had also

filed  an  affidavit  dated  29.11.1978  while  opposing  an

application for appointment of receiver in respect of the suit

property stating that:  

“I state that my late father Mahabir Prasad Kajaria was separated from my grand father late Motilal Kajaria  in  the  year  1942  and  severed  all  his connections with his father and brothers and since then my father was carrying independent business and holding separate property.  

I  further  state  neither  I  nor  my  mother  is  co  – sharer  of  the  Premises  No.  6,  Russel  Street, Calcutta and we have no right, title and interest whatsoever  in  the  said  Premises  No.  6,  Russel Street, Calcutta nor we have inherited the shares of my grand father Late Motilal Kajaria and as such I state that we have been unnecessarily joined as defendants.”

5. In the Order dated 02.05.1979, while appointing a Court

Receiver in respect of the suit property, the court recorded the

following findings:

“… Mahabir Prasad Kajaria had no interest in the property as such respondent No. 5 (Sheo Prakash Kajaria)  also  can  have  no  interest  in  the  said

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property. The allegation that the co-owners have not  received any money towards  their  shares  is incorrect…”  

6. After Defendant Nos. 5 and 12 filed written statement

on 14.09.1979, Smt. Bhagwani Devi Kajaria-Defendant No.16,

who is the mother of late Mahabir Prasad Kajaria (Grand mother

of Defendant No.5 and mother-in-law of Defendant No.12), filed

a written statement clearly stating that late Mahabir Prasad had

separated  from his  father  and other  brothers  as  early  as  in

1942 and had also renounced all his rights in the movable and

immovable properties of his father Motilal Kajaria. The relevant

portion  of  the  written  statement  of  the  grand  mother  of

Defendant No.5 reads as follows:  

“b) The defendant Nos. 1, 2, 3 and 4 are the sons of  this  defendant  and  defendant  No.  5  is  the grandson  of  this  defendant.  This  defendant’s second son Mahabir  Prasad Kajaria father of  the defendant  No.  5  Sheo  Prakash  Kajaria  and husband of the defendant No. 12 Sm. Ginia Devi Kajaria was separated from his father and brothers in  food,  estate  and  business  in  1942.  He renounced all  his  right,  title and interests  in the moveable and immoveable properties of his father the said Motilal Kajaria. The said Mahabir Prasad died  in  1949.  Since  Mahabir  Prasad  Kajaria separated from his father he was carrying on his independent  business  and  also  acquired properties.”  

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7. On 13.12.1979, the petitioner herein, who is Defendant

No.4,  had also filed his written statement on the same lines

indicated above.

8. On  02.07.1980,  the  learned  Single  Judge,  on  an

application for perjury, had recorded the following findings:

“Pannalal Kajaria had three sons Matilal, Jaharmal and Onkarmal Kajaria. Before the death of Motilal Kajaria on 5th June, 1952 his second son, Mahabir Prasad Kajaria was separated from him in 1942 in food  and  in  estate  and  renounced  all  his  claim over the properties of Motilal Kajaria.  

…  There  was  a  declaration  given  by  Smt.  Ginia Devi Kajaria, widow of Mahabir Prasad Kajaria on 25th February,  1956  before  the  Joint  Arbitrators stating  that  her  husband  Mahabir  Kajaria separated himself  from his  father  Matilal  Kajaria and  his  brothers  in  food,  estate  and  business renounced his right title and interest in the said joint  immovable  properties  in  favour  of  his brothers and father.”

9. On  09.01.1989,  Plaintiff  No.  6,  viz.  Sulochna   

Devi had filed an application seeking leave for withdrawal of

the  suit  wherein  also  there  was  a  statement  regarding

relinquishment of the claims of Defendant Nos. 5 and 12.  

10. It is to be noted that Defendant No. 5 is a businessman,

and going by his date of birth, he was 37 in 1978 when he filed

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the affidavit, 38 when he filed the written statement on behalf

of his mother and in 1989, he was aged 49 years.  

11. After  about  15  years  of  the  written  statement,  on

17.01.2004, Defendant Nos. 5 and 12 filed an application for

amendment of the written statement mainly seeking to resile

from the admissions regarding relinquishment of their right in

the suit property.

12. After one year of the said application for amendment of

the written statement, they also filed a civil suit (Civil Suit No.9

of  2005)  on 19.01.2005,  seeking a  declaration attacking the

arbitration award dated 13.09.1956 regarding the partition of

the property and claiming right in the suit property.  

13. On 13.09.2008, the learned Single Judge dismissed the

application. However, the intra-court appeal filed by Defendant

Nos. 5 and 12 was allowed by the Division Bench of the High

Court and hence these appeals.  

14. The  Division  Bench  in  the  impugned  judgment  has

taken  the  view  that  the  rejection  of  the  application  for

amendment would result in failure of justice and would cause

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irreparable injury to Defendant Nos. 5 and 12. According to the

Division Bench, in the impugned Judgment:

“In our view, there was no justification of denying such an opportunity to the appellants to prove the amended version on the ground of mere delay, the effect  of  which  will  be,  to  unjustly  permit  the opposing  defendants  to  reap  the  benefit  of  an apparent admission, which is not conclusive proof of the fact contained in the pleading in accordance with the law of the land, and which may not be true.  Moreover,  for  considering  the  question whether  the  amendment  is  a  malafide  one,  we cannot lose sight of the fact it is not even the case of  the  opposing  defendants  that  by  way  of relinquishing  his  interest,  Mahabir  got  any property  of  the  Coparcenary  in  lieu  of relinquishment. Thus, malafide on the part of the appellants cannot be inferred from the apparent facts of the present case.

We, thus, find that the learned Single Judge, while rejecting the application for amendment of the written statement filed by the appellants, did not follow the well-accepted principles, which are required to be followed, while deciding this type of an  application  for  amendment  of  the  written statement.  Thus,  it  was  a  case  of  improper exercise of discretion by the learned Trial Judge by not  following  the  binding  precedents,  which justified interference by the appellate Court.”  

15.  We are afraid the view taken in the impugned judgment

is not true to facts. Even according to Defendant Nos. 5 and 12,

they  had  their  separate  property  and  they  were  doing

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independent  business.  In  the  affidavit  filed  on  29.11.1978

before the High Court (Annexure-P5), it is stated as follows:  

“1. I  am  a  respondent  No.  5  herein  and  Smt. Giniya  Devi  Kajaria,  respondent  No.  12  is  my mother  and I  am acquainted with  the facts  and circumstances  of  this  case  and  as  such  I  am competent to affirm this affidavit on behalf and on behalf of my mother Smt. Giniya Devi Kajaria the respondent  No.  12.  I  have  read  a  copy  of  the Notice of Motion taken out by the Advocate of the petitioner on 19th September, 1978 and a petition affirmed by  Shreelall  Kajaria  on  19th September, 1978  to  be  intended  to  be  used  as  grounds  in support of the said Notice of Motion and I  state that I have understood the meaning, intents and purposes thereof.  

2. I  state  that  my  late  father  Mahabir  Prasad Kajaria was separated from my grand father Late Motilal Kajaria in the year 1942 and severed all his connections with his father and brothers and since then  my  father  was  carrying  on  independent business and holding separate property.

3. I  further state neither I nor my mother is a co-sharer  of  the  Premises  No.  6,  Russel  Street, Calcutta and we have no right, title and interest whatsoever  in  the  said  Premises  No.  6,  Russel Street, Calcutta nor we have inherited the shares of my grand father Late Motilal Kajaria and as such I state that we have been unnecessarily joined as defendants.

4. I  state  that  my  grand  father  Late  Motilal Kajaria  died on 5th June,  1952 and disputes and differences  arose  between  the  heirs  and  legal representatives of Late Motilal Kajaria in respect of immovable properties left by my said grand father which disputes were referred to an arbitration of Dulichand  Kheria,  Sheo  Prasad  Patodia  and

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Ramnath  Kanoria  and  in  the  said  Arbitration Proceedings my mother Smt. Giniya Devi  Kajaria defendant  No.  12  herein  made  a  declaration  in writing  on  25th February,  1956  before  the Arbitrators  stating  that  my  Late  father  Mahabir Prasad Kajaria separated himself from father and his  brothers  in  food,  estate  and  business  and renounced the right, title and interest in the joint immovable property in favour of his brothers and father.  A copy of the said declaration dated 25th February,  1956  of  my  mother  Smt.  Giniya  Devi Kajaria defendant No. 12 herein addressed to the Arbitrators is enclosed herewith and marked with letter “A”.

5. I  state  and  submit  that  the  petition  is  not maintainable and should be dismissed with cost.

6. With  reference to paragraph 20 of  the said petition I deny that I have got 2.78% in the said premises No.6, Russel Street, Calcutta as alleged or at all which will also appear from the Registered Award  dated  13th September,  1956  of  the  said Arbitrators. Save and except I have no knowledge in the allegations made in different paragraphs of the said petition and I do not admit the same.

7. I state that the petition No.1 Shreelall Kajaria after he was released from imprisonment he was serving as my employee in my firm M/s. Evergreen Industries at Sonepat Haryana at a monthly salary of Rs.400/- per month upto the year 1972 and was staying at Sonepat Haryana till he was under my service.”

16. The clear stand taken by Defendant No. 5 when he was

aged 37 and when he was in active business is that his father

had separated from the grandfather in the year 1942 and since

then,  he  was  carrying  on  independent  business  and  holding

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separate  property.  It  is  crucially  relevant  to  note  that  the

declaration  of  Defendant  No.  12  before  the  Arbitrators

regarding the relinquishment was produced by them only.  

17. Learned Counsel  for Defendant Nos. 5 and 12, in the

impugned  order  has  placed  heavy  relevance  on  Panchdeo

Narain Srivastava v. Km. Jyoti Sahay and Another1. It was

a case where the plaintiff moved an application for amendment

of  the  plaint  regarding  the  relationship  of  the  second

defendant. It was stated in the plaint that he was the uterine

brother  of  one  R.  Later,  an  application  for  amendment  was

moved for deletion of the word “uterine” from the plaint. The

Trial  Court  allowed the  application  but  in  Revision,  the  High

Court set aside the order. While restoring the order passed by

the Trial Court, this Court held at Paragraph-3 of the Judgment

as follows:

“3. Even if the High Court was justified in holding that the deletion of the word ‘Uterine’ has some significance and may work in favour of either side to  a  very  great  extent  yet  that  itself  would  not provide  any  justification  for  rejecting  the amendment  in  exercise  of  its  revisional jurisdiction.  We may, in this connection,  refer  to Ganesh Trading Co. v. Moji Ram wherein this Court after  a  review  of  number  of  decisions  speaking through Beg, C.J. observed that procedural law is

1 (1984) Supp. SCC594

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intended  to  facilitate  and  not  to  obstruct  the course  of  substantive  justice.  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.  The learned  Trial  Judge,  granting  the  application  for amendment  was  satisfied  that  in  order  to effectively  adjudicate  upon  the  dispute  between the  parties,  amendment  of  the  pleading  was necessary.  The  High  Court  in  its  revisional jurisdiction for a reason which is untenable ought not to have interfered with the order made by the trial  court.  The  learned  counsel  for  the respondents  in  this  connection  read  one unreported  decision  of  this  Court  in  which  this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its  revisional  jurisdiction.  We have gone through the judgment. The decision does not lay down any particular  principle  of  law  and  appears  to  be  a decision on its own facts. And ordinarily, it is well settled that unless there is an error in exercise of jurisdiction by the trial court, the High Court would not  interfere  with  the  order  in  exercise  of  its revisional jurisdiction.”

18. The above decision was followed in Sushil Kumar Jain

v. Manoj Kumar and another2. The case pertained to eviction

proceedings. The original stand taken by the tenant was that

there  were  different  tenancies.  However,  an  application  for

amendment was moved stating that there are three different

2 (2009) 14 SCC 38

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portions under one tenancy and not  different  portions under

different tenancies. The Court, at Paragraph-12, held as follows:

“12. In our view, having considered the averments made  in  the  application  for  amendment  of  the written statement,  it  cannot be said that  in  fact neither any admission was made by the appellant in  his  original  written  statement  nor  had  the appellant  sought  to  withdraw  such  admission made by him in his written statement. That apart, after  a  careful  reading  of  the  application  for amendment  of  the written statement,  we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made  in  his  written  statement.  Even  assuming that there was admission made by the appellant in his  original  written  statement,  then  also,  such admission can be explained by amendment of his written  statement  even  by  taking  inconsistent pleas or substituting or altering his defence.”

19. The learned Counsel appearing for the appellant mainly

referred to three Judgments of this Court. In  Modi Spinning

and Weaving Mills Co. Ltd. v. Ladha Ram & Co.3, it was

held as follows at Paragraph-10:  

“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 defendants.  The  High  Court  rightly  rejected  the

3 (1976) 4 SCC 320

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application  for  amendment  and  agreed  with  the  trial court.”

20. In  Gautam Sarup v.  Leela Jetly and others4,  after

considering  Panchdeo Narain Srivastava (supra) and  Modi

Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co.

(supra)  and  several  other  decisions  dealing  with  the

amendment on withdrawal of  admissions in  the pleadings,  it

was held at Paragraph-28 as follows:  

“28. 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.”

21. On amendments generally, in the decision reported in

Revajeetu  Builders  and  Developers v.  Narayanaswamy

and  Sons  and  others5,  after  referring  to  Gautam  Sarup

(supra), the principles on amendment have been summarized

at Paragraph-63. It has been held as follows:  

4 (2008) 7 SCC 85 5 (2009) 10 SCC 84

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“63. On  critically  analyzing  both  the  English and Indian  cases,  some basic  principles  emerge which ought to be taken into consideration while allowing  or  rejecting  the  application  for amendment:

(1)  whether  the  amendment  sought  is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3)  the  amendment  should  not  cause  such prejudice  to  the  other  side  which  cannot  be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5)  whether  the  proposed  amendment constitutionally  or  fundamentally  changes  the nature and character of the case; and

(6) as a general rule, the court should decline amendments  if  a  fresh  suit  on  the  amended claims would be barred by limitation on the date of application.

These  are  some  of  the  important  factors  which may be kept in mind while dealing with application filed  under  Order  6  Rule  17.  These  are  only illustrative and not exhaustive.”

22. In the case before us, we are afraid, many of the factors

referred to above, have not been satisfied. It is significant to

note that Defendant Nos. 5 and 12, after moving an application

for  amendment  withdrawing  the  admissions  made  in  the

written statement, have filed a substantive suit attacking the

alleged relinquishment of their claim in the family property and

we are informed that the trial is in progress. In that view of the

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matter, we do not propose to deal with the matter any further

lest it should affect the outcome of the suit filed by Defendant

Nos. 5 and 12 since the declaration sought in the suit filed in

2005 is to take away the basis of the said relinquishment of the

claim in the suit  property.  However,  as far  as amendment is

concerned,  the  attempt  to  wholly  resile  from  the  admission

made  after  twenty  five  years,  we  are  afraid,  cannot  be

permitted.  

23. Delay in itself may not be crucial on an application for

amendment in a written statement, be it for introduction of a

new fact or for explanation or clarification of an admission or

for taking an alternate position. It is seen that the issues have

been framed in the case before us, only in 2009. The nature

and character of the amendment and the other circumstances

as in the instant case which we have referred to above, are

relevant while considering the delay and its consequence on

the  application  for  amendment.  But  a  party  cannot  be

permitted to wholly withdraw the admission in the pleadings, as

held  by  this  Court  in  Nagindas  Ramdas v.  Dalpatram

Ichharam alias Brijram and others6. To quote Paragraph-27:  

6 (1974) 1 SCC 242

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“27. From a conspectus of the cases cited at the bar,  the principle that emerges is,  that if  at  the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on  the  basis  of  a  compromise,  would  be  valid. Such  material  may  take  the  shape  either  of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or  implied  admission  made  in  the  compromise agreement, itself. 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 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  other  hand, evidentiary admissions which are receivable at the trial  as  evidence,  are  by  themselves,  not conclusive. They can be shown to be wrong.”

(Emphasis supplied)

24. We  agree  with  the  position  in  Nagindas  Ramdas

(supra)  and  as  endorsed  in  Gautam  Sarup (supra)  that  a

categorical  admission  made  in  the  pleadings  cannot  be

permitted to be withdrawn by way of an amendment. To that

extent, the proposition of law that even an admission can be

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withdrawn, as held in  Panchdeo Narain Srivastava (supra),

does not reflect the correct legal position and it is overruled.

25. However, the admission can be clarified or explained by

way of amendment and the basis of admission can be attacked

in  a  substantive  proceedings.  In  this  context,  we  are  also

mindful of the averment in the application for amendment that:

“11. …. Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 when the defendant No. 5 was only 2 years and the defendant No. 12  was  only  21  years.  Till  the  death  of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. The defendant No.5 and his two  sisters,  namely,  Kusum  and  Bina  were brought  up  and  were  maintained  from  the income  of  the  joint  family  properties.  The petitioners after  the death of Mahabir,  they continued  to  live  in  the  joint  family  as members and till  now members of the joint family. In the marriage of the two sisters of the  defendant  no.5  Kusum  and  Bina  (now after marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne out  from  the  incomes  of  the  joint  family properties. The said facts are well known to all the family members and their relations.”  

26. In  the  counter  affidavit  filed  before  this  Court,

Defendant Nos. 5 and 12 have stated as follows:

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“The alleged letter of 1956 allegedly issued by the widow of  Mahabir  Prasad used in  the arbitration proceedings where she was not a party admitting relinquishment of  the share of  her  husband and thereafter  admitting  such  letter  in  the  original pleading is  not  what  the answering respondents want  to  resile  and/or  withdraw from but  by  the present amendment had only ought to explain the circumstances  in  which  such  letter  has  been written.”

27. In the above circumstances, we do not intend to make

the  suit  filed  in  the  year  2005  otherwise  infructuous.  The

application for amendment withdrawing the admissions made

in the written statement on relinquishment of the claim to the

suit property by Defendant Nos. 5 and 12 is rejected. However,

we, in the facts and circumstances of the case, are of the view

that Defendant Nos. 5 and 12 should be given an opportunity to

explain/clarify the admissions made in the written statement.

Accordingly, Defendant Nos. 5 and 12 are permitted to file an

application within one month from today limiting their prayer

only  to  the  extent  of  explaining/clarifying  the  disputed

admissions in the written statement which will be considered

on its merits and in the light of the observations made herein

above.  

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28. Though  the  learned  Counsel  for  the  appellant

vehemently  pressed  for  costs,  we  reluctantly  refrain  from

passing  any  order  in  that  regard.  After  all,  it  is  a  suit  for

partition of the family property. At any stage, the parties can

have a change of heart and ignore the law or facts or other

technicalities and reach an amicable settlement.  

29. The appeals are partly allowed as above. The impugned

Judgment  will  stand  modified  to  the  extent  indicated  herein

above.  

30. There shall be no order as to costs.

..…….…..…………J.                      (ANIL R. DAVE)

..……………………J.                  (KURIAN JOSEPH)

..…….…..…………J.                   (AMITAVA ROY)

New Delhi; September 18, 2015.  

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