Bindu Sharma v. Kapil Sud - Appeal of Order Allowing Amendment of Written Statement

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Smt. Bindu Sharma vs Kapil Sud And Anr on 25 March, 2026

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 09.02.2026
Date of decision: 25.03.2026
+ FAO(OS) 3/2026 & CM APPL. 2934/2026
SMT. BINDU SHARMA .....Appellant
Through: Mr. Akhil Sachar, Ms. Sunanda Tulsyan,
Ms. Kashish Maheshwari and Ms. Babita
Rawat, Advocates.
versus
KAPIL SUD AND ANR. .....Respondents
Through: Ms. Tamali Wad, Senior Advocate with
Mr. Mohit, Ms. Harshita, Mr. Karan, Mr.
Varyam, Ms. Palak, Mr. SD Singh,
Ms.Kamla, Mr. Sidharth, Mr. Manan,
Advocates for Defendant No-1.
CORAM:
HON'BLE MR. JUSTICE VIVEK CHAUDHARY
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT 1. The present appeal has been preferred under Section 10 of the Delhi
High Court Act, 1966, assailing the Order dated 24.11.2025 passed by the
learned Single Judge in CS(OS) 84/2019 whereby I.A. No. 16481/2023 filed by
Respondent No.2 under Order VI Rule 17 read with Section 151 of the Code of
Civil Procedure, 1908 (" CPC ") was allowed and Respondent No.2 was
permitted to amend his Written Statement by substantially altering the
admissions earlier made therein.

Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 1 of 11 05:25:18 2. The underlying suit has been instituted by the Appellant/Plaintiff seeking
declaration, partition, permanent injunction and rendition of accounts in respect
of property bearing No. M-9, Green Park Main, New Delhi measuring
approximately 500 sq. yards ("Suit Property"). The Appellant and Respondents
No.1 and 2 are the children and legal heirs of Late Major Satya Pal Sud and
Late Smt. Promila Sud.

1. As per the plaint, the Suit Property was purchased by Late Major Satya
   Pal Sud/father of the Appellant in the name of Smt. Promila Sud/mother of the
   Appellant through a registered perpetual lease deed dated 13.12.1957,
   subsequently transferred to the name of Major Satya Pal Sud and was treated as
   part of the family estate. After the demise of Major Satya Pal Sud on
   29.05.1967 intestate, the property devolved upon Smt. Promila Sud and the
   three children in equal shares. By mutual understanding reflected in affidavits
   dated 27.12.1990, the property was mutated exclusively in the name of Smt.
   Promila Sud with the understanding that the property would not be partitioned
   during her life time. Smt. Promila Sud passed away on 06.01.2016.

2. It is further pleaded that the disputes inter se the parties arose thereafter
   when Respondent No.1 asserted exclusive ownership over the Suit Property
   and began collecting rent from tenants. Consequently, when the Appellant
   served a legal notice dated 02.05.2016 on the Respondents, in reply thereof, the
   Respondents for the first time relied upon an alleged Will dated 25.11.2014
   purportedly executed by Smt. Promila Sud in their favour. The Appellant
   contends that the said Will is forged and fabricated and has therefore filed the Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 2 of 11 05:25:18 suit seeking a declaration to that effect along with consequential reliefs of
   partition and injunction.

3. Respondent No.2 filed his Written Statement on 03.05.2019 wherein he
   substantially supported the Appellant's case. In the said Written Statement,
   Respondent No.2 admitted that the property ought to be equally divided among
   the three siblings and expressed having no knowledge regarding the alleged
   Will dated 25.11.2014. Respondent No.2 also reiterated that the mother had
   desired equal distribution of the property amongst her children.

4. After a lapse of more than four years, Respondent No.2 filed I.A. No.
   16481/2023 under Order VI Rule 17 CPC seeking amendment of the Written
   Statement. By way of the proposed amendments, Respondent No.2 sought to
   completely retract his earlier admissions and take a diametrically opposite stand
   by asserting that the Will dated 25.11.2014 is genuine and enforceable, that the
   Suit Property was the absolute self-acquired property of Smt. Promila Sud, and
   that the Appellant's suit deserves dismissal.

5. By the impugned order dated 26.11.2025, the learned Single Judge
   allowed the application holding that the trial had not commenced and that a
   liberal approach ought to be adopted while considering amendment of Written
   Statement. The Court further held that the proposed amendment merely
   clarifies the position of Respondent No.2 with respect to the Will dated
   25.11.2014 and would assist in determining the real questions in controversy.
   Aggrieved thereof, the present Appeal has been preferred by the Appellant.

Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 3 of 11 05:25:18 8. The impugned order was assailed by the Appellant contending that the
application was a belated attempt to withdraw clear and categorical admissions
made in the Written Statement and to realign with Respondent No.1. It was
further contended that all material facts, including the alleged Will, were
already within the knowledge of Respondent No.2 at the time of filing of the
Written Statement and therefore the amendment was neither bonafide nor
permissible in law.

1.   We have heard the learned counsel for parties and perused the record.
   

2.  The limited question which arises for consideration in the present appeal
                     is whether the learned Single Judge was justified in permitting Respondent
                     No.2 to amend his Written Statement so as to withdraw clear admissions and
                     substitute an entirely contrary defence after a lapse of more than four years of
                     the filing of the Written Statement.
   

3.  The law governing the amendment of pleadings under [Order VI Rule 17
                     CPC](https://indiankanoon.org/doc/161831507/) is well settled. While the power of amendment is wide and courts
                     ordinarily adopt a liberal approach, such discretion is circumscribed by certain
                     settled limitations. One of such restriction is that a party cannot ordinarily be
                     permitted to withdraw clear and categorical admissions made in the pleadings,
                     particularly when such admissions confer a valuable right upon the opposite
                     party.
   

4. In Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4
   SCC 320, the Supreme Court authoritatively held that an amendment which Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 4 of 11 05:25:18 has the effect of displacing admissions made in the written statement cannot
   ordinarily be permitted. The relevant extract is reproduced as under:

"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."
13. At the same time, it is equally settled that courts adopt a more liberal
approach in permitting amendments to written statements as compared to
amendments of the plaints as held in Baldev Singh & Ors. v. Manohar Singh
& Ors., (2006) 6 SCC 498, as below:

1. ........... That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 5 of 11 05:25:18 with same rigour in "the former than in the latter case."

1. However, even in the context of written statements, the Supreme Court has repeatedly emphasized that mutually destructive or wholly inconsistent pleas which negate earlier admissions cannot be permitted as a matter of course as in case of Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors., (2007) 5 SCC 602, as under:

"18. It is now well settled by various decisions of this
Court as well as those by the High Courts that the courts
should be liberal in granting the prayer for amendment of
pleadings unless serious injustice or irreparable loss is
caused to the other side or on the ground that the prayer
for amendment was not a bona fide one....."
15. In Heeralal v. Kalyan Mal & Ors., (1998) 1 SCC 278 , the Supreme
Court has as held under:

" 9. ............Even that apart , the said decision of two
learned Judges of this Court runs counter to a decision of
a Bench of three learned Judges of this Court in the case
of Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram &
Co. [(1976) 4 SCC 320 : (1977) 1 SCR 728] In that case
Ray, C.J., speaking for the Bench had to consider the
question whether the defendant can be allowed to amend
his written statement by taking an inconsistent plea as
compared to the earlier plea which contained an
admission in favour of the plaintiff. It was held that such
an inconsistent plea which would displace the plaintiff
completely from the admissions made by the defendants in
the written statement cannot be allowed. If such
amendments are allowed in the written statement the
plaintiff will be irretrievably prejudiced by being denied
the opportunity of extracting the admission from the
defendants. In that case a suit was filed by the plaintiff for Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 6 of 11 05:25:18 claiming a decree for Rs 1,30,000 against the defendants.
The defendants in their written statement admitted that by
virtue of an agreement dated 7-4-1967 the plaintiff
worked as their stockist-cum-distributor. After three years
the defendants by application under Order VI Rule 17
sought amendment of written statement by substituting
paras 25 and 26 with a new paragraph in which they took
the fresh plea that the plaintiff was mercantile agent-cum-
purchaser, meaning thereby they sought to go behind
their earlier admission that the plaintiff was stockist-cum-
distributor. Such amendment was rejected by the trial
court and the said rejection was affirmed by the High
Court in revision. The said decision of the High Court
was upheld by this Court by observing as aforesaid. This
decision of a Bench of three learned Judges of this
Court is a clear authority for the proposition that once
the written statement contains an admission in favour of
the plaintiff, by amendment such admission of the
defendants cannot be allowed to be withdrawn if such
withdrawal would amount to totally displacing the case
of the plaintiff and which would cause him irretrievable
prejudice......."
(Emphasis supplied)

1. Similarly, in Revajeetu Builders & Developers v. Narayanaswamy & Sons & Ors., (2009) 10 SCC 84 , the Supreme Court enunciated the aforesaid principle as below:

"64. The decision on an application made under Order 6
Rule 17 is a very serious judicial exercise and the said
exercise should never be undertaken in a casual manner.
We can conclude our discussion by observing that while
deciding applications for amendments the courts must not
refuse bona fide, legitimate, honest and necessary
amendments and should never permit mala fide, worthless
and/or dishonest amendments."
Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 7 of 11 05:25:18 17. Recently, the Supreme Court in LIC of India v. Sanjeev Builders Pvt.
Ltd. & Ors. (2022) 16 SCC 1 has reiterated that an amendment should
ordinarily be refused if:

"71.3.2. To avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other
side,

(b) by the amendment, the parties seeking amendment
do not seek to withdraw any clear admission made by
the party which confers a right on the other side, and

(c) the amendment does not raise a time-barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations)."
(Emphasis supplied)

1. Tested on the aforesaid principles, the amendment sought by the Respondent No. 2 in the present case assumes a peculiar character. In the original Written Statement dated 03.05.2019, Respondent No. 2 stated as follows:

 Admitted that the Suit Property ought to be equally divided among
the three siblings;

 Supported the Appellant's claim for partition;
 Expressed having no knowledge regarding the alleged Will dated
25.11.2014; and
 Reiterated that their mother intended equal distribution among the
children.
19. By way of the amendment sought in 2023, the Respondent No.2 seeks to:

 Assert that the Will dated 25.11.2014 is genuine and valid;
Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 8 of 11 05:25:18
 Claim that the Suit Property was the absolute self-acquired property
of Smt. Promila Sud;

 Oppose the prayer for partition; and
 Seeks dismissal of the suit.
20. The proposed amendments, therefore, does not merely elaborate or
clarify the defence, rather, it completely displaces the earlier admissions and
substitute an entirely contrary case. The defence originally aligned with the
Appellant and for the suit to be decreed; the amended defence aligns with the
Respondent No. 1 and seeks dismissal of the suit. In effect, the proposed
amendment results in withdrawal of unequivocal admissions regarding equal
inheritance and the Appellant's entitlement to partition decree. Such
admissions, once made in the Written Statement, constitute substantive
evidence and create valuable rights in the favour of the Appellant/Plaintiff.
Permitting their withdrawal through amendment would deprive the
Appellant/Plaintiff of the legitimate advantage arising there from.

1. The explanation furnished by Respondent No. 2 that the earlier Written
   Statement came to be filed under a mistaken belief allegedly induced by the
   Appellant, does not inspire confidence and appears to be an afterthought. The
   record reveals that the alleged Will dated 25.11.2014, along with the attendant
   facts and circumstances, was well within the knowledge of Respondent No. 2 at
   the time of filing of the Written Statement in the year 2019. Significantly, the
   demise of their mother had occurred on 06.01.2016, nearly three years prior
   thereto, thereby affording ample opportunity to ascertain and take a considered Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 9 of 11 05:25:18 position. The belated attempt to resile from earlier pleadings, under the guise of
   mistake, is thus neither bona fide nor tenable. The proposed amendment,
   therefore, cannot be justified as a case of subsequent discovery of facts.

2. Furthermore, the delay of more than four years in seeking the
   amendment also assumes considerable significance. While mere delay, in
   isolation, may not be fatal, its impact cannot be overlooked where the proposed
   amendment seeks to withdraw clear admissions and fundamentally alter the
   stand earlier set up. In such circumstances, the delay assumes a material
   character, particularly when no satisfactory or convincing explanation has been
   furnished to justify the belated attempt.

3. The learned Single Judge appears to have proceeded primarily on the
   premise that amendments to written statements ought to be construed liberally,
   particularly where the trial has not yet commenced. While such considerations
   are, without doubt, relevant, the impugned order fails to adequately address the
   well-settled principle that admissions, once made, cannot be permitted to be
   withdrawn where they confer a substantive and valuable right upon the
   appellant/plaintiff. The exercise of discretion in allowing amendment,
   therefore, stands vitiated by the omission to consider this crucial limitation.

4. In the considered view of this Court, permitting Respondent No. 2 to
   completely retract his earlier admissions and set up an entirely new defence
   would seriously prejudice the Appellant and would efficiently rewrite the
   defence taken in the suit after several years of litigation.

Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026 FAO(OS) 3/2026 Page 10 of 11 05:25:18 25. Procedural rules undoubtedly exist to advance the cause of justice.
However, they cannot be invoked to permit a party to resile from the solemn
admissions made on oath and substitute a wholly inconsistent defence to the
detriment of the appellant/plaintiff.

1. In view of the foregoing, the impugned order dated 24.11.2025 passed by
   the learned Single Judge in CS(OS) 84/2019 allowing I.A. No. 16481/2023
   cannot be sustained and is, accordingly, set aside. The I.A. No. 16481/2023
   filed by Respondent No. 2 under Order VI Rule 17 CPC stands dismissed. The
   present appeal is accordingly allowed.

2. The suit shall proceed on the basis of the original Written Statement filed
   by Respondent No.2 on 03.05.2019.

3. The parties are directed to appear before the learned Single Judge on the
   date already fixed, or on such date as may be notified by the Registry, for
   further proceedings in the suit.

4. The pending application(s), if any, also stands disposed of.

VIVEK CHAUDHARY
(JUDGE)

                                                                              RENU BHATNAGAR
                                                                                 (JUDGE)

                      MARCH 25, 2026/kp/tr Signature Not Verified Signed By:PRATIBHA KUMARI Signing Date:25.03.2026   FAO(OS) 3/2026                                                   Page 11 of 11 05:25:18