Suit - Amendment - limitation - long delay - 22 years

Whether a defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases.

Ram Niranjan Kajaria vs Sheo Prakash Kajaria & Ors on 18 September, 2015
Author: ..…….…..…………J.
Bench: Anil R. Dave, Kurian Joseph, Amitava Roy
                                    IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                   CIVIL APPEAL NO.                OF 2015
              (Arising from S.L.P. (C) Nos. 31423-31424 /2010)

Ram Niranjan Kajaria                         … Appellant (s)

                                   Versus

Sheo Prakash Kajaria and others              … Respondent (s)

                                    WITH

                   CIVIL APPEAL NO.                OF 2015
                  (Arising from S.L.P. (C) Nos. 33891/2010)

Jugal Kishore Kajaria                              … Appellant (s)

                                   Versus

Sheo Prakash Kajaria and others              … Respondent (s)


                               J U D G M E N T

“63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”

In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendant Nos. 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted.

Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others