Thursday, 10 October 2019

Whether court can permit withdrawal of admission by amendment of written statement?

I find from the impugned order that the Trial Court has merely
reproduced the head note in the judgment delivered in Usha
Balasaheb Swami Vs. Kiran Appaso Swami [AIR 2007 SC 1663].
There is not a single reason assigned in the impugned order allowing
the entire application Exh.29. In my view, an application for

amending
the written statement, especially when the amendment is
sought to delete certain admission and avernments, which may
favour the other side, cannot be lightly permitted. Deletion of certain
avernments and statements favouring the plaintiffs, by amending the
plaint, is a serious aspect. While delivering such an order, the Trial
Court is expected to apply it's mind and only after concluding that
the deletion is necessary, that an order could be passed. Imposing
costs is not an excuse to allow an application by an order which
suffers from lack of reasons.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11 OF 2019

Kaka  Sahebrao Kapse,   Vs   Maruti  Apparao Disle,

( CORAM : Ravindra V.Ghuge, J.)
DATE : 26/09/2019


1. The petitioner/original plaintiff in RCS No.72/2016 is
aggrieved by the order dated 05/01/2018 passed by the Trial Court,
by which application Exh.29, filed by defendant Nos. 1 to 3 seeking

amendment
to the written statement and withdrawal of certain
admissions, has been allowed. Respondent No.4 / original defendant
No.4 is not a contesting respondent and therefore leave to delete
respondent No.4, is granted. Deletion be carried out forthwith.
2. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
3. Exh.29 was filed by defendant Nos. 1 to 3 clearly indicating
that they desire to withdraw certain statements and admissions given
in the written statement, which was originally filed on 21/07/2016.
Exh.29 was filed on 22/02/2017 praying for leave to delete certain
admissions given and add certain avernments to the written
statement. The petitioner had strenuously opposed the said
application vide reply at Exh.32. The Trial Court delivered an order
on 29/06/2017 allowing application Exh.5 filed by the plaintiff and
granted injunction.
4. I find from the impugned order that the Trial Court has merely
reproduced the head note in the judgment delivered in Usha
Balasaheb Swami Vs. Kiran Appaso Swami [AIR 2007 SC 1663].
There is not a single reason assigned in the impugned order allowing
the entire application Exh.29. In my view, an application for

amending
the written statement, especially when the amendment is
sought to delete certain admission and avernments, which may
favour the other side, cannot be lightly permitted. Deletion of certain
avernments and statements favouring the plaintiffs, by amending the
plaint, is a serious aspect. While delivering such an order, the Trial
Court is expected to apply it's mind and only after concluding that
the deletion is necessary, that an order could be passed. Imposing
costs is not an excuse to allow an application by an order which
suffers from lack of reasons.
5. In view of the above, this petition is allowed. The impugned
order dated 05/01/2018 is quashed and set aside. Application
Exh.29 is restored to the file in RCS No.72/2016.
6. The litigating sides are at liberty to advance oral submissions
and cite reported judgments, afresh. The Trial Court shall decide
Exh.29 after considering the submissions of the parties, the law cited
and by assigning reasons.
7. Rule is made partly absolute in the above terms.
( Ravindra V.Ghuge, J.)

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