1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 372 OF 2008 Maulana Yasin Abdul Gani Naje. .. Petitioner Vs Gulam Ali Hussainmiyya Naje & Ors. .. Respondents -- Shri Manoj Kadam holding for Shri Pratap Patil for the Petitioner. -- CORAM : A.S. OKA, J DATE : 3RD FEBRUARY, 2010. P.C. . On 22nd January, 2008, a notice for final disposal of the Petition at the admission stage was issued. Learned counsel appearing for the Petitioner states that all the concerned Respondents have been duly served. 2. The Petitioner is the Defendant in a suit filed by the Respondents. The suit was filed inter alia for removal of encroachments allegedly made by the Petitioner on an area of 40 gunthas in the Northern portion of the suit property described in Paragraph 1 of the Plaint. The second prayer is for deleting the name of the Petitioner entered in the revenue record relating to the suit property. 3. A Written Statement was filed by the Petitioner. An application for amendment of the Written Statement was made by the Petitioner which has been disallowed by the impugned order. 2 4. In the Written Statement filed by the Petitioner, Paragraph 7 was incorporated. An English translation of a part of the said paragraph reads thus:- “Though the suit property was standing in the name of the Plaintiffs, Bashir Abdul Latif Naje and Shabbir Abdul Rashid Naje who were the sons of the aunt of the Plaintiffs had a share in the suit property and they were owners of the suit property. Abdul Gulamali Hussein Naje, Bashir Abdul Latif Naje and Shabbir Abdul Rishir Naje agreed to sell the suit property to the Plaintiffs and executed a regular agreement on 6th February, 1986. On 6th March, 1986, the possession of the suit property was handed over to the Plaintiffs. The said land is not of the ownership of the Plaintiffs but is of the ownership of Bashir Naje and Shabbir Naje. The Plaintiffs have deliberately not made them parties in the suit.” 5. In the application for amendment, it was contended that due to inadvertent mistake in the aforesaid portion, instead of making a reference to the Petitioner/Defendant, a reference has been made to the Plaintiffs and, therefore, amendment of the aforesaid portion was sought for contending that Abdul Gulamali Hussein Naje, Bashir Abdul Latif Naje and Shabbir Abdul Rishir Naje agreed to sell the property to one Anis Hamid Naje and executed the Agreement on 6th February, 1986. It is further sought to be contended by the amendment that on 6th March, 1986, they handed over the possession of the suit property to the said Anis Hamid Naje and, in turn, the said Anis Naje executed an Agreement in respect of the suit property in favour of the Petitioner and placed the Petitioner in possession thereof. By the impugned order, the learned Trial Judge held that the Petitioner was seeking to withdraw the admissions made in the original Written Statement. 3 6. The learned counsel appearing for the Petitioner submitted that by the proposed amendment, the Petitioner was seeking to correct the inadvertent error in the original Written Statement. He pointed out the other parts of the Written Statement and submitted that there is no attempt to withdraw the admissions in the original Written Statement. 7. I have given careful consideration to the submissions. It will be necessary to consider the relevant portions of the Plaint and in particular Paragraph 4 thereof. In the said Paragraph 4, the Respondents have referred to the fact that the Petitioner supplied to the Advocate for Respondents a xerox copy of the Agreement executed by Bashir Abdul Latif Naje and Shabbir Abdul Latif Naje in favour of Anis Hamid Naje. A reference is also made to a xerox copy of the possession receipt handed over by the Petitioner to the Advocate for the Respondents. Perusal of the Written Statement shows that the Petitioner has specifically contended that he has been in possession of the suit property for more than 21 years. If the Plaint and the Written Statement are read, it is obvious that there is inadvertent error in the paragraph 7 of the original Written Statement which was sought to be corrected by the Petitioner. Even the Respondents have averred in the Plaint that the Petitioner was relying upon the Agreement executed in favour of Anis Naje as well as the possession receipt. Thus, it is obvious that there was no effort on the part of the Petitioner to withdraw any admissions from the original Written Statement. Hence, the application made by the Petitioner has been rejected on a completely erroneous ground. In fact, the learned trial Judge has went to the extent of observing that by the amendment, nature of the suit will change. 4 8. The impugned order is erroneous and deserves to be quashed and set aside. Hence, I pass following order : - (a) The impugned order and judgment dated 18th October, 2007 is quashed and set aside. (b) The application made by the Petitioner at Exhibit – 52 is allowed. (c) Amendment to be carried out within two weeks from the date on which a writ of this order is received by the trial Court. (d) The Writ Petition is allowed in above terms. JUDGE