KBP 1244-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1244 OF 2009 Raghunath Hari Patil ..Petitioner Vs. Balaso Hari Patil and others ..Respondents ......... Mr.Milind Deshmukh, for petitioner. Mr.P.S.Hole, for respondent Nos.1 and 2. ....... CORAM : A.S.OKA, J.. DATE : 18 th SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the petitioner and the learned counsel for the first and second respondents. 2] The petitioner is the original defendant. First and second respondents filed a suit for possession and partition of the suit property and for perpetual injunction. The first part of the property in respect of which relief of injunction is claimed is a land with alleged right to use the well and draw the water from the well. An application for temporary injunction was made by the first and second respondent to which a reply­cum­written statement was filed by the petitioner and the third respondent. The case made out in the plaint is that the well is situated on land bearing gut No.311. In the reply­cum­written statement this aspect was dealt with by the petitioner and third respondents in paragraph 9 thereof. 3] The trial Court granted temporary injunction. An appeal was preferred by the petitioner herein before the District Court. The appeal has been KBP 1244-09.sxw 2 dismissed. The main ground on which the appeal was dismissed is that there is admission in paragraph no.9 of the written statement of the petitioner that the well is in the property owned by the first and second respondents. The appellate court in paragraph 10 has relied upon the said admission. Paragraph 11 deals with the submission of the petitioner that the word “plaintiffs” has been wrongly typed in paragraph 9 of the written statement and if paragraph 9 is as a whole, it is apparent that the word plaintiff has been used instead of the defendant. 4] It is not in dispute that now an amendment has been permitted to be carried out to the paragraph 9 of written statement for replacing word “plaintiffs” by the word “defendant”. The impugned order and especially order of the appellate court proceed only on the basis of the said admission in the written statement which is now permitted to be corrected. I find that apart from the reference to the Commissioner’s report, the appellate court has confirmed the order only on the basis of averments in paragraph no.9 of the written statement. Now the written statement has been amended . The appellate court has not considered the submission made by the counsel for the petitioner that there is an obvious error in the written statement only on the ground that the same has not been amended. In view of the subsequent amendment to the written statement, the interests of justice will be served if the order of the appellate court is quashed and set aside and the appeal is ordered to be heard afresh in the light of subsequent amendment carried out to the written statement. It is pointed out that during the pendency of the appeal, an application was made for stay of the operation of the order of the trial court and the said application was rejected by the order dated 24 th August, 2009. Hence, the order of temporary injunction passed by the trial Court was operating during the pendency of Appeal. Thus, the order of the trial Court is operating even today. KBP 1244-09.sxw 3 5] In the circumstances, the Writ Petition is disposed of by passing following order: (a) The impugned judgment and order dated 25 th November, 2008 is quashed and set aside and Miscellaneous Civil Appeal No.44 of 2007 is restored to file of the learned District Judge­1, Karad. (b) The parties are directed to appear before the learned District Judge on 12 th October, 2009 at 11 a.m. The learned Judge shall decide the appeal afresh in the light of the observations made in this order. The appeal shall be decided preferably on or before 30 th November, 2009. (c) All contentions of the parties on merits of the appeal are expressly kept open. ( A.S.OKA, J. )