Mrs. Nirmal Sethi and others vs Deep Chand Anand and others

Usha Mehra, J.—Mrs.Nirmal Sethi and others have filed the suit against Shri Deep Chand Anand & others for declaration and injunction.

After the institution of the suit the present application has been filed for amendment of the plaint inter alia on the grounds that by inadvertence and over sight the plaintiff in para 6(v) of the mentioned Kidar Cottage, Simla, to be an HUF property.

Subsequent to the filing of the suit the plaintiff has learnt that the said property is not an HUF property. Secondly, in para 8 of the plaint, due to the typographical error, the area of 6.9 acres, falling in Khasra No. 393 to 395 has wrongly been mentioned as "393 and 395" instead of "393 to 395". And lastly in order to avoid and technical objection, the plaintiff wants to amend the plaint seeking relief of partition of properties left by the parents of the parties by metes and bounds. This amendment she is seeking in order to finally and completely settle the controversy.

This application has been contested by that defendants on the ground that the amendment now sought will change the complexion of the case altogether. The plaintiff had all alone been admitting that Kidar Cottage at Simla is an HUF property and now seeks to withdraw this admission, this would adversely affect rights of the defendants. Rights have already accured in their favour. If this admission is allowed to be with-drawn, the claim of the plaintiff would increase from 1/50th to that of 1/10th, which cannot be permitted .As regards the other amendments the same can also be not allowed because the plaintiff omitted the Khasra No. 394, intentionally and now cannot be allowed to amend the same. Similarly, suit for partition cannot be sought for, if so advised the plaintiff should file a separate suit seeking partition of the properties.

I have heard Mr. P. P. Malhotra, Senior Advocate for the plaintiffs and . Mr. Man Mohan Sarin, Advocate, for the defendants and have perused the documentary evidence placed on record. It is an admitted fact that the plaintiffs sought her share in the Kidar Cottage at Simla, taking it to be an HUF property. Now on the basis of revenue record, which according to the plaintiff came to her hand subsequently, from where she came to know that it is not an HUF property, therefore, now she wants to delete the word ''HUF''. It is a well settled principle of law that an admission once made cannot be allowed to be withdrawn, if i": works adversely to the right and interest of the other party which right has already accured in its favour. The contention of Mr. Malhotra that the plaintiffs were misled to belief that the Kidar Cottage at Simla is an HUF property and, therefore, pleaded so. This argument to my mind has no force. Before filing the suit, the plaintiffs must have verified the true and correct facts, therefore, now they cannot be allowed to urge the plea of ignorance. In fact plaintiffs have been maintaining this property to be an HUF property, finds support from an application subsequently moved by the plaintiffs for appointment of a Receiver, bearing 1.A.No.418/92, dated 14.1.1992 I.A.No. 418/92, was filed by the plaintiffs after the reply to their present application has been filed by the defendants. Still in the schedule of properties annexed with the petition, at serial No. 12, Kidar Cottage at Simla has been shown to be an HUF property. Therefore, having repeatedly maintained that this is an HUF property, plaintiffs now cannot be allowed to withdraw this admission, particularly when it works to the disadvantage of the defendants. Right has already accrued in favour of the defendants, on account of this admission. In this regard I arrvsupported by the decision of the Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., . The Supreme Court while considering the various aspects, came to the conclusion that the inconsistent pleas can be made in pleadings and even alternative pleas can be admissible, but if by inconsistent and alternative pleas the party is seeking to displace the other part^'' completely, from the admission made in pleadings then such an admission cannot be allowed to be withdrawn, because that will irretrievably prejudice the other party. Therefore ,such an amendment should be rejected.

Relying on these observations of Supreme Court I am of the view that permission to delete the word ''HUF'' cannot be allowed. If allowed, it would amount to withdrawal of admission and infact irretrievably prejudice the defendants. Because, if this amendment is allowed then defendants will be deprived of their respective shares in the property which has accrued because of the admission made by the plaintiffs.

In view of the same, the amendment in para 8 so far as it relates to Khasra No.393 to 395 and seeking a relief of partition is concerned, the same are allowed. As regards withdrawal of admission regarding Kidar properties at Simla as ''HUF'' property, the same is hereby rejected.