The petitioner is the plaintiff and the respondents are the defendants. The plaintiff filed a suit in O.S.No.100 of 2001 before the District Munsif, Kovilpatti, for partition. The suit was decreed vide order dated 01.04.2011. Aggrieved against the said order, the defendants 1 to 3 filed an appeal before the Sub Court, Kovilpatti. Pending appeal, the defendants 1 to 3 filed I.A.No.137 of 2011 to mark additional evidence stating that the properties mentioned in 6th and 7th items in the plaint as self acquired property. The said interlocutory application is allowed vide order dated 03.04.2012. Aggrieved against the said order, the petitioner/plaintiff is before this Court.
2. The learned counsel for the petitioner would submit that initially the defendants in the written statement have stated that the property are ancestral property. The Trial Court after considering the oral and documentary evidence, decreed the suit by stating that the petitioner/plaintiff is entitled to 1/6th share in the suit properties. Aggrieved over the same, the defendants filed appeal and the same is also pending. While so, the defendants filed the interlocutory application to receive additional evidence by stating that two items of the suit properties are self acquired properties, which is contrary to their own admission in the written statement. Further, he would submit that the learned Judge without recording any reason to take the additional evidence on record, simply allowed the application. In the above stated position, the learned counsel for the petitioner, prays to allow the civil revision petition by setting aside the impugned order. In support of his contention the learned counsel relied on the decision reported in (2008) 7 SCC 85 (GAUTAM SARUP V. LEELA JETLY AND OTHERS).
3. The learned counsel for the respondents would submit that the lower appellate Court after hearing both sides rightly allowed the application. As liberty is given by the lower appellate Court to the petitioner to cross- examine the additional evidence, no prejudice would be caused to the petitioner in allowing the petition. Hence, the learned counsel for the respondents would pray for dismissal of the civil revision petition.
4. Heard the learned counsel for the petitioners as well as the respondents.
5. It is an admitted case of the defendants in their written statement wherein they have specifically averred that the 6th and 9th item of the properties are ancestral property and the suit is also decreed based on the oral and documentary evidence on that aspect. In this juncture it is useful to extract paragraphs 16 and 17 of the decisions reported in (2008) 7 SCC 85 (cited supra):-
?16. A thing admitted in view of Section 58 of the Evidence Act need not be proved. Order 8 Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial maybe treated to be an admission in which event the Court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order 12 Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom. The decision of this Court unfortunately in this regard had not been uniform. We would notice a few of them.
17. A three-Judge Bench of this Court speaking through Ray, C.J. In Modi Spg. & Wvg. Mills Co. Ltd . v. Ladha Ram & Co.2 opined:(SCC p.321, para
10) ?10.It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the Trial Court.?
If such amendments are allowed it will only displace the plaintiff complaint from the admission made by the plaintiff. The learned Trial Judge simply by recording the submission made by the respondent had allowed the petition in the guise of giving an opportunity to the respondent is erroneous.
6. As stated earlier, if such amendments are allowed, the plaintiffs will be prejudiced by being denied the opportunity of executing the admission from the defendants. Therefore, I am inclined to set aside the order passed by the learned Sub Judge, Kovilpatti in I.A.No.137 of 2011 in A.S.No.40/2011 and the same is set aside. The civil revision petition is allowed. No costs. Connected miscellaneous petitions are closed.
To The Sub Court, Kovilpatti.
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