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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