Ram Dhyan Rai and Others vs Mostt. Peyaro Kuer and Others

P.K. Deb, J.—Heard the learned Counsel for the parties.

This revision petition has been preferred against the order dated 2.12.99 passed by the VIIIth Sub-Judge, Siwan in T.S. No. 178 of 1989 whereby and where under the amendment of the written statement filed by Original Defendant No. 3 as pressed from the side of the Defendant Nos. 1 and 3 had been allowed. The Plaintiffs-Petitioners have filed the above mentioned suit for partition and also with other reliefs. It was specifically contended that Defendant No. 3 in the suit was the elder brother and he was managing the properties while the other two brothers were serving elsewhere and were sending money and by that money improvements were made in the suit property itself. The written statement was filed by the Defendant No. 3 and in paragraph 24 of that written statement some admission was made by the Defendant No. 3 to the effect that houses were constructed on the contribution of the money sent by the Plaintiff and other brothers and that the Plaintiff and the other brothers was allowed to stay in that house itself when they came up after their service career. Defendant No. 3 died during the pendency of the suit and in his place heirs have been substituted. Now the heirs have filed the petition for amendment of the written statement by deleting such paragraph 24 and also adding some more lines denying the whole contention of the Plaintiff. Such amendment sought for had been resisted from the side of the Petitioner to the effect that once an amendment has been made by the predecessor the same cannot be withdrawn by the heirs when they have stepped into the shoes of their predcessors and such statement made in the earlier written statement was admissible in evidence as per Section 32 of the Evidence Act. But such statement had been turned down by the learned court below and amendment was allowed on the plea that the same would not change the nature of the suit. The question of changes of nature of the suit does not arise on the amendment being made in the written statement but the factum is that whether once an admission is being made by the Defendant the same can be withdrawn or not. It has now become a settled principle of law that once an admission is being made the same cannot be withdrawn as by that admission already a right has been accured to the adverse party and such right cannot be taken away by way of amendment. On the legal principle the learned Counsel appearing for and on behalf of the Opposite party has also conceded. In that view of the matter the impugned order is hereby set aside as the same is illegal on the face of it and the learned court below is directed not to allow the amendment as sought for in the written statement and then proceed with the suit accordingly.