ORDER
R.C. Lahoti, J.
1. Law as to amendment of pleadings contained in Rule 17 of Order 6 of the Code of Civil Procedure, 1908 has been subject-matter of discussion in umpteen number of cases. The general principles are so well settled by the law laid down by the Apex Court, also illuminated in several decisions of this Court, as hardly need to be reviewed and restated. For principles see - Ganesh Trading Co. v. Moti Ram, AIR 1978 SC 484; Jai Jai Ram Manohar Lal v. National Building Material Supply, AIR 1969 SC 1267; L. J. Leach and Co. Ltd. and Anr. v. Messrs Jardine Skinner and Co., AIR 1957 SC 357 and P. H. Patil v. Kalgonda Shequonda Patil and Ors., AIR 1957 SC 363. Nevertheless, the difficulty faced by subordinate Courts while dealing with an application seeking an amendment resultinng in withdrawal of admission contained in the pleadings can be understood. The present one is such a case.
2. A bare reading of Rule 17 shows that once the Court has formed an opinion that the amendment prayed for is necessary for the purpose of determining the real question in controversy between the parties, it shall be allowed. In other matters, the Court has been conferred with a discretion in permitting amendment, or alteration in pleadings, in such manner and on such terms as may be deemed just by the Court. The discretion so conferred, like all other judicial discretions, has to be exercised judicially, guided by reason and not at whim, caprice or fancy. The overriding consideration is that the procedural laws are handmaid of justice; they are intended to facilitate and not to obstruct the course of substantive justice. In civil litigation costs is a panacea which heals every sore unless the facts and circumstances of a particular case indicate that the indulgence shown by the Court may itself become a source of sores.
3. The plaintiff/non-petitioner No. 1 filed a suit for declaration of title and partition describing the two properties forming subject-matter of suit in para 2 of the plaint. It was averred that the parties were sons, daughters and widow of late Bhogiram Sharma and the properties though self acquired by the deceased, were liable to be partitioned on his death, amongst his heirs. The defendant No. 1 in his written statement stated that not the two alone described by the plaintiff but four other immovable properties and a few movables too were liable to be partitioned between the parties because they were all self-acquired properties of late Bhogiram, having been succeeded to jointly by all the parties consequent to the death of the holder . It was also submitted that the suit as filed by the plaintiff was liable to be dismissed for failure to include in suit all the available properties liable to be partitioned.
4. The suit is of the year 1987. Issues having been framed on the pleadings of the parties, the evidence too commenced. On 23-6-1990, the defendant No. 1/petitioner moved an application seeking an amendment in the written statement whereby it was sought to be pleaded that all the properties set out in written statement (including the two set out in the plaint) were all joint Hindu family properties of the parties as the same were acquired by the deceased with the aid of joint family funds. The plea now sought to be raised through amendment is diametrically opposed to the original plea that the properties were the self-acquired properties of the deceased, a fact practically admitted between the parties at least to the extent of two properties detailed in the plaint.
5. The trial Court rejected the prayer for amendment in the written statement on the ground that the defendant No. 1 could not be permitted to wriggle out of the admission made by him and to set-up a case totally inconsistent with his original plea. The aggrieved defendant No. 1 has come up in revision.
6. It may be stated that in the application not a word has been stated explaining the delay or the circumstances in which admission by the defendant No. 1 was made in his original written statement and as to why and under what circumstances, the situation needing amendment arose.
7. The learned counsel for the petitioner has placed reliance on Panchdeo Narain v. Jyoti, AIR 1983 SC 462, Amolakchand v. Firm of Sadhuram Tularam, 1954 NLJ 101 = AIR 1954 Nag. 200, Tulsiram v. Sardarsingh 1983 MPWN 377 and Manulal v. Smt. Savitribai, 1980 MPWN 104, to contend that even if he was seeking withdrawal of an admission it could have been permitted. On the contrary, the learned counsel for the plaintiff/non-petitioner relied on Modi Spg. and Wvg. Mills v. Ladha Ram and Co., AIR 1977 SC 680 and Kaushal Kishore Verma v. Tahir Ali Bohra, 1984 MPRCJ Note 53 to submit that the order of the trial Court dots not call for any interference.
8. It will be useful to go through the cited authorities and read the law in the background of the facts respective cases so as to deduce the principles of law deducible therefrom.
9. In M/s. Modi Spg. and Wvg. Mills (supra), the defendant in his written statement admitted the status of the plaintiff as principal in the transaction in dispute. Three years after the filing of the written statement, an amendment was proposed whereby, the defendant wanted to wriggle out of that admission and instead wanted to plead that the capacity of the plaintiff was that of an agent in the transaction. The Trial Court observed that the proposed amendment was repudiation of a clear admission, motivated to deprive the plaintiff of the valuable right accrued to him. This opinion was affirmed by the High Court observing that the defendant wanted to introduce an entirely different case which, if permitted, would prejudice the other side. Their Lordships observed : -
'The defendants cannot be allowed to change completely the case and substitute an entirely different and new case.'
10. Kaushal Kishore Verma (supra) has followed the abovesaid case. Therein, Punch Deo Narain's case (supra) was distinguished and it was also observed that Panch Deo Narain 's case was decided by a Bench of two Judges while M/s. Modi Spg. and Wvg. Mills (supra) was decided by a Bench of three Judges.
11. In Panch Deo Narain's case (supra) the plaintiff/appellant had described himself as the son of uterine brother of Rama Shankar. By amendment, the word 'uterine' was sought to be deleted. The trial Court permitted the amendment. In revision, the High Court set aside the order of the trial Court observing that the amendment amounted to change in the basis of the claim which could not be allowed. Their Lordships, referring to their own earlier view in Ganesh Trading Go. v. Moji Ram, AIR 1978 SC 484 held :-
'An admission made by a party may be withdrawn or may be explained away; therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn.'
Their Lordships also observed that the trial Court while permitting the amendment was satisfied that it was necessary in order to effectively adjudicate upon the dispute between the parties and as such, the High Court in its revisional jurisdiction should not have interfered because of the well settled position of law that unless there was an error in exercise of jurisdiction, the High Court would not interfere in revisional jurisdiction. The appeal was allowed and the order of the trial Court permitting the amendment was restored. It is clear that Panch Deo Narain's case is not a case where a litigant was taking a somersault by attempting at introducing an entirely different case to the prejudice of the other party. The amendment only changed the basis of the claim which, otherwise, remained substantially the same.
12. In Amolakchand (supra), the plaintiff's right to redemption of mortgage was admitted by the defendants. A little later, on inspecting the documents, an amendment was proposed by the defendants claiming ownership and exclusive title to the property and denying the plaintiff's right of redemption which was permitted by the trial Court. The Nagpur High Court held that such an amendment would not be allowed if asked at a late stage; yet, if sufficient grounds were shown, amendment in defence could be allowed for the purpose of withdrawing the admission. Having considered the circumstances of the case and the stage at which the amendment was prayed, it was held that no injustice would be done to the plaintiff as he would have ample opportunity of meeting the defendant's case before the issues were framed.
13. Tulsiram's case (supra), as short-noted, does not set out the facts, specially the nature of the original pleadings, and the amendment permitted. All that is stated is that the admissions were sought to be withdrawn. But in what circumstances, the short note does not indicate. Panch Deo Narain's case (supra) has been referred to as a latter decision. The Court observed that it could not be. said that the trial Court acted without jurisdiction or illegally or with material irregularity. Interference was denied, upholding the order of the trial Court permitting the amendment because the interest of defendants was well protected.
14. In Mannulal (supra), admissions in the written statement were sought to be withdrawn on the allegation that the admissions were outcome of fraud practised by the husband of the plaintiff. The amendment was rejected by the trial Court. This Court opined that the rejection of amendment could not be upheld because no enquiry had been made by the trial Court on the sufficiency of the grounds for permitting the defendant to resile from the admissions made earlier.
15. The law is well settled that the value of admissions depends on the circumstances of each case, though ordinarily, an admission is a valuable piece of evidence. Statements alleged to be admissions have to be read as a whole and not by picking out portions thereof. An admission merely as an admission is not conclusive against the person making out; but it may operate as an estoppel Under Section 115 of the Evidence Act when the person who made the admission cannot be permitted to deny it.
16. Two decisions of the Superme Court may be noticed. An admission so far as the facts are concerned, would bind the maker but not in so far as it relates to a question of law. Banarsi Das v. Kanshiram, AIR 1963 SC 1165. An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. (Nagubai v. B. Shama Rao, AIR 1956 SC 593.) Useful assistance can be derived from these principles by the Courts faced with an application for amendment seeking to withdraw an admission earlier made in the pleadings.
17. To sum-up, the principles of law which emerge and flow from a resume of the abovesaid authorities are : -
(i) A prayer for amendment seeking to withdraw an admission made earlier in the pleadings does not raise the question of jurisdiction. It will depend on the facts and circumstances of each case whether such amendment can be permitted.
(ii) Admissions on questions of law can be permitted to be withdrawn liberally but prayer for amendment seeking to withdraw an admission on point of fact must receive a cautious and careful attention of the Court.
(iii) Admission may be permitted to be withdrawn if prayed for at an early stage of the proceedings, if it does not irreparably prejudice, the other side and does not cause injustice to it. The Court would be chary in entertaining a prayer made at a late stage specially when nothing has been placed on record to explain the circumstances in which the earlier admission was made and is now sought to be withdrawn.
(iv) An amendment introducing an entirely different and new case, irretrievably prejudicing the opposite party, motivated to deprive it of the valuable right accrued to it cannot be permitted.
(v) An amendment appearing to be withdrawal of an admission but in substance amounting to a mere change in the basis of the claim or defence or amounting to an additional or alternative approach to the same relief may be permitted.
(vi) The discretion exercised by the trial Court while permitting or refusing such an amendment shall not ordinarily be interfered with by the High Court unless it be a case of jurisdictional error or exercise of jurisdiction with illegality or material irregularity.
18. Reverting to the facts of the case, the amendment proposed by the defendant/petitioner amounted to setting up a totally inconsistent and different case than what has been pleaded in the original pleadings. Not a word has been stated in the application explaining the circumstances in which the earlier admission was made and how and in what circumstances it became necessary to change the defence. The amendment, if permitted, would irretrievably prejudice the plaintiff. The trial Court did not, therefore, err in refusing the amendment. No interference is called for in the exercise of revisional jurisdiction of this Court.
19. The revision is held to be without any merit and is dismissed but without any order as to the costs.