A.     DIFFERENCE BETWEEN AN ADMISSION MADE IN A PLEADING AND AN ADMISSION IN A DOCUMENT

1. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore.
2. The law as regards the effect of an admission is also no longer res integra. Whereas a party may not be permitted to resile from his admission at a subsequent stage of the same proceedings, it is also trite that an admission made contrary to law shall not be binding on the State.
3. A thing admitted in view of Section 58 of the Evidence Act need not be proved.
4. 8 Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff.
5. 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 i 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.

NOTE:- THE DECISIONS OF THIS COURT UNFORTUNATELY IN THIS REGARD HAD NOT BEEN UNIFORM.

1. A three-Judge Bench of this Court speaking through Ray, C.J. in Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co. (1976) 4 SCC 320) opined: (SCC p. 321, para 10)

"70. 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."

1. A two-Judge Bench of this Court, without noticing the binding precedent in Modi Spg.2, in Panchdeo Narain Srivastava v. Jyoti Sahay (1984) Supp SCC 594) stated: (Panchdeo Narain Srivastava case3, SCC p. 595, para 3)

"5. ... But the learned counsel for the respondents contended that by the device of amendment a very important admission is being withdrawn. 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."

1. Yet again, in Akshaya Restaurant v. P. Anjanappa (1995) Supp (2) SCC 303) the following observations were made by the Court: (SCC p. 304, para 5)

"5. We find no force in the contention. It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in Para 6 of the written statement a definite stand was taken but subsequently in the application for amendment it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 CPC in permitting amendment of the written statement." (See also Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (1995 Supp (3) SCC 179).

1. The question came up for consideration before another Division Bench in Heeralal v. Kalyan Mai (1998)1 SCC 278) wherein noticing the aforementioned decisions, Modi Spg. Decision was followed.

1. Other decisions which were cited at the Bar were distinguished stating: {Heeralal case6, SCC pp. 284-85, paras 10-12)

"10. Consequently it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff's case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by the latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three-member Bench of this Court taking a diametrically opposite view.

In Panchdeo Narain Srivastava v. Jyoti Sahay case the plaintiff was held entitled to amend his plaint by submitting that though earlier he stated that the defendant was uterine brother, the plaintiff by amendment in his plaint could submit that the defendant was his brother and the word 'uterine' could be dropped. Even in that case the main case put forward by the plaintiff did not get changed as the plaintiff wanted to submit that the defendant was his brother. Whether he was uterine brother or real brother was a question of decree and depended on the nature of evidence that may be led before the Court. Therefore, the deletion of the word 'uterine' was not found to be displacing the earlier case of the plaintiff. On the facts of the present case also, therefore, the said decision cannot be of any assistance to the learned counsel for the respondents.

1. In Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad(2005) 11 SCC 314) wherein it is stated: {Sangramsinh P. Gaekwad case1, SCC p. 381, paras 215-18)

"215. Admissions made by Respondent 1 were admissible against her proprio vigore.

216. In Nagindas Ramdas v. Dalpatram Ichharam this Court held: (SCC p. 252, para 27)

'27. ... Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.'(See also Bishwanath Prasad v. Dwarka Prasad (1974) 1 SCC 78).

217. In Viswalakshmi Sasidharan v. Syndicate Bank this Court held: (SCC p. 174, para 2)

'2. ... On the other hand, it is admitted that due to slump in the market they could not sell the goods, realise the price of the finished product and pay back the loan to the Bank. That admission stands in their way to plead at the later stage that they suffered loss on account of the deficiency in service.'

218. Judicial admissions by themselves can be made the foundations of the rights of the parties."

1. Yet again in Union of India v. Pramod Gupta (2005) 12 SCC 1) this Court held: (SCC pp. 52-53, para 134)

"134. ... Before an amendment can be carried out in terms of Order 6 Rule 17 of the Code of Civil Procedure the court is required to apply its mind on several factors including viz. whether by reason of such amendment the claimant intends to resile from an express admission made by him. In such an event the application for amendment may not be allowed. (See Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co.2, Heeralal v. Kalyan Mai6 and Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad1.)"

1. In Punjab National Bank v. Indian Bank (2003) 6 SCC 79)this Court opined that an application for amendment may be allowed to clarify the relief which had been prayed for even in the plaint, particularly, when no prejudice in this behalf would be caused to the other party to the lis.

1. In Rajesh Kumar Aggarwal v. K.K. Modi (2006) 4 SCC 385)while emphasising on the underlined principles of Order 6 Rule 17 of the Code of Civil Procedure, it was held: (SCC pp. 392-94, paras 15-17 & 20)

"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

1. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

1. ... The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice."

1. In Usha Balashaheb Swami v. Kiran Appaso Swami (2007) 5 SCC 602) this Court observed: (SCC p. 611, para 26)

"26. Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain additional facts which need to be proved by the plaintiff and Defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of the plaintiff and Defendants 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao. Therefore, it must be held that in view of our discussions made hereinabove, the High Court was not justified in reversing the order of the trial court and rejecting the application for amendment of the written statement."

CONCLUSION:- 

1. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.
2. An explanation can be offered provided there is any scope there for. A clarification may be made where the same is needed.
3. That despite the amendments made by the Code of Civil Procedure (Amendment) Act, 1976, amendment of pleadings being procedural in nature, the same should be liberally granted but as in all other cases while exercising discretion by a court of law, the same shall be done judiciously.
4. Rules governing pleadings and leading of evidence have been incorporated to advance the interests of justice and to avoid multiplicity of litigation. Such a prayer cannot be denied on hypertechnical grounds. The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time.
5. Amendment may also be refused, if such a prayer made separately, is shown to be barred by time.