Judgment:
S.U. Khan, J.
1. Heard learned Counsel for the parties. This is plaintiffs' writ petition who have filed Original Suit No. 222 of 1985 against contesting respondents for partition and for mandatory injunction. Petitioners have claimed that their share in the property in dispute is 1/4th. Some of the defendants filed written statement admitting some of the facts mentioned in the plaint. Thereafter those defendants filed application seeking amendment in the written statement. Trial court/Munsif, Mohamdabad district Ghazipur through order dated 11.2.1988 allowed the amendment application. Against the said order plaintiffs-petitioners filed Civil Revision No. 49 of 1988 which was dismissed by District Judge, Ghazipur on 29.3.1988 hence this writ petition.
2. The only ground taken in the amendment application was typing errors in the original written statement and that some essential facts had been omitted which required to be mentioned.
3. In para 1 of the written statement part of para 1 of the plaint had been admitted. Through amendment word 'not' was asserted before the word 'admitted'. Similar amendments withdrawing admission were sought and allowed in paragraphs 3, 5, 6 and 10 of the written statement. A new para as para 10A was also added giving a new twist to the case of the defendants by pleading that Jasan Khan had no male issue and he was having only one daughter who was married to Rahat Khan hence Rahat Khan inherited the entire share of Jasan Khan. In the original written statement it was stated that only pedigree given in para 1 of the plaint is admitted rest of the allegations are denied. Through the amendment the word 'only' was deleted and the word 'not' was added before the word admitted. In this manner the pedigree which had earlier been categorically admitted was denied through amendment.
4. In the following case the Supreme Court held that even admission in the written statement could be withdrawn.
Akshaya Restaurant v. P. Anjanappa : AIR 1995 SC 1498 : 1995 (3) AWC 1872 (SC).
5. The said judgment is of two Judges Bench. However, earlier a three Judges Bench of the Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. : AIR 1977 SC 680, had taken the view that through amendment admission cannot be withdrawn. Supreme Court in Heeralal v. Kalyan Mal : AIR 1998 SC 618, held that 1995 authority of Akshaya Restaurant v. P. Anjanappa (supra) had not taken into consideration 1977 authority of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. (supra) hence it was per incuriam.
6. In the authority of 1998 Heeralal v. Kalyan Mal (supra) the authority in Panchdeo Narain Srivastava v. Jyoti Sahay : AIR 1983 SC 462, (also referred to by the trial court in the instant case) was also considered. In the said case initially plaintiff had described defendant as his uterine brother. Through amendment he sought deletion of the word uterine. The Supreme Court held that it did not mean to displace the earlier case of the plaintiff. In a recent authority of the Supreme Court in Somesh Singh v. Phoolan Devi and Ors. 2009 (107) RD 358 (SC), it has been held that no such amendment in the pleading can be allowed if by reason thereof a party to the suit resiles from admission made at earlier stage. In that authority another authority of the Supreme Court in Gautam Swaroop v. Leela Jetly and Ors. : 2008 (7) SCC 85 : 2008 (3) AWC 2844 (SC), has also been referred.
7. In view of the above Supreme Court authorities defendants in the instant case could not be permitted to resile from the admission. Through the amendment they categorically attempted to resile from the admission made in the original written statement. The admission made in the original written statement can by no stretch of imagination be described as typing error.
8. Learned Counsel for the respondent has cited an authority of the Supreme Court copy of which was obtained from Radhey Shyam and Anr. v. Chabi Nath and Ors. 2009 SCCL Com 512. The date of decision appears to be 4.5.2009. However, in the copy it is mentioned as 4.15.2009. In the said authority the question was whether in temporary injunction matter involved in a suit High Court can interfere in exercise of writ jurisdiction or not. In the said authority ultimately the earlier authority of the Supreme Court in Surya Deo Rai v.C. Rai : 2003 (6) SCC 675, was referred to the larger Bench.
9. However, there is no dispute regarding the legal proposition that orders passed by civil courts in suits may be set aside in exercise of writ jurisdiction. All the above authorities of the Supreme Court arose out of orders passed by civil courts on amendment applications filed under Order VI, Rule 17, C.P.C.
10. Accordingly, writ petition is allowed. Impugned orders are set aside. Amendment application filed by the defendants is rejected.
As the suit is very old hence the trial court must decide the same very expeditiously.