1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1706 OF 2008 ALONGWITH WRIT PETITION NO.1707 OF 2008 Narayan Pandurang Jadhav & Anr. .. Petitioners (In both the petitions) versus Shakuntala Ghansham Shah & Ors. .. Respondents (In both the petitions) Mr.Amit Borkar for the petitioners. Mr.Rahul P. Walvekar for respondents. CORAM : A.S.OKA, J. DATE : 14th January 2010. JUDGMENT: . The submissions of the parties were heard on 8th January 2010. The order dated 18th March 2008 passed by this Court in these petitions records that the petitions shall be finally disposed of at the stage of admission. 2. It will be necessary to consider the facts of the case in brief. It is not in dispute that facts of both the petitions are more or less identical. Therefore, a reference is made to the facts of the case in Writ Petition No.1707 of 2008. The petitioners in the said writ petition are the defendant Nos.1 and 2 in the suit filed by the 1st and 2nd respondents. The suit is filed for perpetual injunction relating to the immovable property described in paragraph 1 of the plaint. An application for temporary injunction was made by the 1st and 2nd respondents which was contested by the petitioners by filing a reply. Though the written statement was not filed by the petitioners, it appears that as reply to application at Exhibit 5 was filed, the petitioners were under an 2 impression that written statement has been filed by them. Therefore, an application was made at Exhibit 79 on 6th August 2005 for amendment of the written statement for incorporating a plea of adverse possession. The said application was contested by the 1st and 2nd respondents. By order dated 7th December 2005, the said application was rejected. The application was rejected on merits as well as on the ground that in fact the petitioners had not filed any written statement and what was on record was a reply to the application for temporary injunction. The petitioners challenged the said order by preferring a Writ Petition in this Court. By order dated 13th April 2006, the Writ Petition was disposed of by this Court by passing the following order: “P.C.: Counsel appearing for the petitioners states on instructions that the petitioners intend to file a purshis before the trial Court adopting the reply filed to the application at Exhibit 5 on behalf of the first and second defendants as the written statement of the first and second defendants. Learned counsel states that thereafter an application for amendment of the written statement would be moved in the event that the defendants are so advised. Both the petitions are dismissed as withdrawn in view of the statement made.” 3. Thereafter, an application was made by the petitioner before the trial Court praying that the reply filed to application at Exhibit 5 be treated as a written statement. The said application was contested and was rejected by the trial Court relying upon amended provision of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The order passed by the trial Court on the said application was set aside by this Court by judgment and order dated 3rd May 2007 in Writ Petition No.8286 of 2006. This Court directed that the reply filed by the petitioners to application at Exhibit 5 shall be treated as a written statement. Thereafter, another application at Exhibit 103 was made by the petitioners seeking permission to amend the written statement. The amendment sought was the same 3 which was sought by application at Exhibit 79. By the impugned order, the said application has been rejected. The learned trial Judge observed that as earlier application for amendment seeking the same relief was rejected, principles of res judicata will apply and subsequent application cannot be entertained. 4. The learned counsel appearing for the petitioners relied upon the order dated 13th April 2006 passed by this Court. He submitted that when the earlier application for amendment was made, in fact the written statement of the petitioners was not on record. He submitted that the effect of the order dated 13th April 2006 passed by this Court is that the petitioners were granted a liberty to file a fresh application for amendment after adopting the reply to application at Exhibit 5 as the written statement. He submitted that the earlier application could not have been considered on merits as the written statement was not on record when the said earlier application was filed. He, therefore, submitted that the subsequent application ought to have been considered on merits and ought to have been allowed. The learned counsel appearing for the 1st and 2nd respondents opposed the petition by submitting that writ petition filed by petitioner for challenging the order passed below application at Exhibit 79 has been in fact dismissed as withdrawn. He submitted that this Court has not granted any liberty to the petitioners to file a fresh application for amendment. He submitted that the trial Court was justified in rejecting the application on the ground that a fresh application could not have been entertained. 5. I have given careful consideration to the submissions. It cannot be disputed that when the application at Exhibit 79 was filed by the petitioners seeking permission to amend the written statement, in fact the written statement was not on record. Hence, the said application could not have been entertained by the Court as the application 4 itself was not maintainable. This Court by order dated 3rd May 2007 permitted the petitioners to adopt the reply to application at Exhibit 5 as the written statement. The application at Exhibit 103 was made by the petitioners immediately thereafter on 2nd August 2007. 6. The suit filed by the 1st and 2nd respondents is for perpetual injunction. The plea which is sought to be raised by way of amendment was that the petitioners have perfected their title to the suit property by adverse possession. The petitioners being defendants could have been permitted to raise the said plea by way of amendment as essentially the said plea is based on bar of limitation. 7. As stated earlier, when the earlier application was filed, the written statement of the petitioners was not on record and therefore the application itself was not maintainable. The order of trial Court rejecting the earlier application has not been confirmed on merits. When the petition was filed for challenging the said order, the petition could not have been entertained as even on the said date written statement of the petitioners was not on record. Therefore, in the order, this Court has recorded a statement of the learned counsel appearing for the petitioners that after the reply to application at Exhibit 5 was adopted as the written statement, the petitioners will apply for same amendment. 8. In the circumstances, there was no justification for the trial Court to reject the prayer for amendment. 9. There was some default on the part of the petitioners as earlier they filed an application for amendment when such application could not have been filed. Therefore, the petitioners will have to pay costs to the original plaintiffs of each petition 5 quantified at Rs.3,500/-. 10. Hence, I pass the following order: : O R D E R : (a) The writ petitions are allowed in terms of prayer clause (b) subject to petitioners paying costs of Rs.3,500/- in each petition to the original plaintiffs within a period of eight weeks from today. Payment of costs will be a condition precedent. Deposit of the amount of the costs with the trial Court within the stipulated time will be treated as a sufficient compliance. (b) Amendment shall be carried out within a period of two weeks from the date on which writ of this order is received by the trial Court. (A.S.OKA,J)