1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5507 OF 2008 1. Jaitunbee W/o.Abdul Majid Age-57 years, Occu-Household and Agriculture, R/o.Takali Rajarai, Tq.Khultabad, Dist : Aurangabad 2. Malanbee W/o.Abdul Majid, Age-47 years, Occu-Household and Agriculture, R/o. As above. PETITIONERS VERSUS 1. Abdul Sattar S/o.Kadar Patel, Age-62 years, Occu-Agriculturist, R/o.Rajarai Takali, Tq.Khultabad, Dist : Aurangabad, 2. Mohd.Ismail S/o.Raj Mohammad Since deceased, through LR’s 2A) Khurshidbee Widow of Mohd. Ismail, Age-70 years, Occu-Agriculture, R/o.Rajarai Takali, Tq.Khultabad, Dist : Aurangabad. 2B) Laddu @ Masud S/o.Mohd. Ismail Age-40 years, Occu-Agriculture, R/o. As above. 2C) Pashu S/o.Mohd. Ismail, Age-35 years, Occu-Agriculture, R/o. As above. 2 2D) Naeem S/o. Mohd. Ismail, Age-30 years, Occu-Agriculture, R/o. As above. 2E) Akhtar Begum W/o. Hameed Age-28 years, Occu-Agriculture, R/o. As above. 3. Abdullah S/o. Raj Mohammad, Since deceased, through LR’s 3A) Rabiabee Widow of Abdullah Patel, Age-60 years, Occu-Household, R/o.Takali Rajarai, Tq.Khultabad, Dist.Aurangabad. 3B) Siraj S/o.Abdullah Patel, Age-40 years, Occu-Agriculture, R/o. As above. 3C) Fayyaz S/o.Abdullah Patel, Age-37 years, Occu-Agriculture, R/o. As above. 3D) Nazir S/o.Abdullah Patel, Age-35 years, Occu-Agriculture, R/o. As above. 3E) Ruksanabee D/o.Abdullah Patel, Age-32 years, Occu-Agriculture, R/o. As above. 3F) Zaheer S/o.Abdullah Patel, Age-28 years, Occu-Agriculture, R/o. As above. 3G) Shabana D/o.Abdullah Patel, Age-40 years, Occu-Agriculture, R/o. As above. 3 3H) Shahana D/o.Abdullah Patel, Age-19 years, Occu-Agriculture, R/o. As above. 4. Jainabee W/o.Jamal Khan, Age-55 years, Occu-Household, R/o.Modgaon, Tq.Ambad, Dist.Jalna. RESPONDENTS Mr.A.P.Bhandari, holding for Mr.S.V.Gangapurwala, advocate for the petitioners. Mr.P.S.Mehata, holding for Mr.R.S.Sarvadnya, advocate for respondent no.1. Remaining respondents not served as no relief is claimed against them. (CORAM : A.V.POTDAR, J.) DATE : 02/07/2009 PER COURT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioners/original defendant no.1 & 2 in Spl.C.S.No.493 of 1991 on the file of Jt.Civil Judge, S.D. Aurangabad have challenged the order passed below Exh.141, dated 05/08/2008 by which the amendment application for amendment in the written statement filed by the petitioners/original defendant no.1 and 2 was rejected by the Trial Court which is the impugned order under challenged by way of present writ petition. 2. Rule. 4 3. Rule made returnable forthwith. By consent of the parties, writ petition is taken up for final hearing at the stage of admission itself. 4. The factual matrix which gave rise to file the present writ petition can be summarized that the respondent no.1 herein have filed Spl.C.S.No.493 of 1991 for Specific Performance of Contract, which was entered into between respondent no.1/original plaintiff at one side and the deceased husband of the present petitioner at other side dated 28/03/1991. In the said special civil suit, after service of summons, the present petitioners as well as the other respondents also appeared, contested the suit by filing their written statement. The written statement filed by the present petitioners of which the copy is at internal page no.265 of the compilation, while the copy of written statement filed by the other respondents, who were arrayed as defendant no.3 and 4 is at Exh.12 before the Trial Court, of which the copy is at page no.29 of the compilation. On the basis of these pleadings, it appears that issues were framed on 04/07/1992 and parties were directed to lead the evidence in support of their pleadings and on the basis of issues framed. It further appears that after a long span when the matter was fixed for recording of evidence, and the first respondent tendered his affidavit of examination in chief, an application was moved under Order 6 Rule 17 of CPC for amendment in the written statement filed by the petitioners/original defendant no.1 and 2 before the Trial Court. The application was opposed by respondent no.1 After hearing both the parties, vide 5 order dated 05/08/2008, order came to be passed below Exh.141 i.e. the application for amendment and the amendment application was rejected by the Trial Court which order is impugned in the present writ petition. 5. Heard advocate for petitioners followed by the arguments of advocate for respondent no.1 Perused the record with the assistance of both the advocates before this Court. According to advocate for petitioners the amendment introduced by the present petitioners who are respondent no.1 and 2 before the Trial Court were cheated by the first respondent as he is settling the issues in the earlier suit filed for partition and under this impression signatures were obtained on the written statement of these petitioners by mis-representation by the first respondent, which fact came to the knowledge of present petitioners in the month of September 2007 and at that time, it was realized that by making fraud on these petitioners the written statement of the admission was obtained and tendered in the Court. In the premise, an application was moved before the Trial Court to explain the circumstances in which the written statement came to be filed by these petitioners. According to learned advocate for petitioners, even though the original written statement was filed in the month of October 1991, the issues were framed in the month of July 1992 and the present application for amendment was filed in the month of September 2007. Even though it is filed after the span of 16 years, it can not be said that this application is filed at the belted stage, as according to him, when the petitioners realized that 6 fraud is committed upon them, they have filed this application for amendment to the written statement. It is next submission on behalf of the petitioners that it is an application for amendment to explain the situation in which the written statement was filed by present petitioners and during the course of this explanation, these petitioners are not withdrawing the admission which they have given in the original written statement, and if this amendment is in the form of explanation about the circumstances in which the original written statement was filed by these petitioners, then it will not change the nature of the suit. These submissions are vehemently opposed by learned advocate appearing for respondent in the Trial Court as well as before this Court. For the reasons quoted in para no.7 & 8 of the order, the submissions advanced on behalf of the petitioners were negated by the Trial Court. 6. During the course of argument, reliance is placed by the learned advocate appearing for the petitioner on the fulling reported in 2007(1) Mh.L.J. in the matter of Bharat Petroleum Corporation Ltd., versus Precious Finance Investment Pvt.Ltd., In para no.33 of this ruling, guidelines (i) to (xxi) are given. By placing reliance on these guidelines given in para no.33 of the citation, it is urged across the bar that so far as the yardstick which is applicable to the amendment to be carried out in that plaint, that yardstick will not be applicable to the amendment to be carried out in the written statement. Both are standing on the different footing. Then reliance is placed on the ruling reported in (2000) 1 SCC 712, 7 a Division Bench Judgment of the Apex Court in the matter of B.K.Narayan Pillai versus Parameswaran Pillai and another. Reliance is placed on the headnote D of the citation which speaks for mere delay or lapse of time in introducing the amendment to the pleadings in the written statement, on that sole ground, the application for amendment to the pleadings not to be rejected. 7. These submissions are vehemently opposed by advocate for respondents. 8. Considering the submissions across the bar and on perusal of the proposed amendment in the light of the original pleadings in the written statement filed by the present petitioners dated 25/10/1991, it reveals that it is nothing but the admission of entire part of the plaint at the hands of these petitioners. Thus the fact is clear that the original written statement filed by the petitioners is in the form of an admission. The proposed amendment which is sought by Exh.141, it is alleged that the petitioners want to explain the circumstances and situation in which these pleadings were filed by the present petitioners. In para no.8 of the order passed by the Trial Court, instances are given in an un-ambiguous words. In the original written statement execution of the agreement is admitted by the petitioners. Consideration amount passed under that agreement is also admitted by the petitioners and if this is so, then by way of proposed amendment the petitioners defendants want to introduce the case that the document of agreement is not bearing the signature 8 of her deceased husband, as well as the document is sham, forced and fabricated document and was prepared by the first respondent in collusion with the witness of the agreement of sale. The arguments submitted across the bar are very attractive, but are not digestable because admissionsw given in un-ambiguous words now can not be explained in the words that the Executant of the document has not signed or has not put his or her thumb impression on the document, which is the subject matter of the suit. It is not only the withdrawal of the admission, but it also to defeat the admission given by way of pleading and acrrued right because the admission of document in favour of the otherside and it is noted by the Apex Court in the judgement reported in (2000) 1 SCC page no.712, wherein it is observed by the Apex Court that in case of amendment introduced to the written statement, admission given in favour of the plaintiff not to be withdrawn by way of the proposed amendment or the amendment introduced to the written statement. Here we have to bear it in mind that whenever any citation to be considered or to be read, the citation to be read as a whole and not read in a piecemeal part which is favourable to either of the parties. While considering the ratio laid down in any of the citation, it is necessary to consider the entire effect and impact of the citation on the facts of a case now in the hands of this Court, which is deciding the factum of it. In the premise, even though the proposed amendment is after the span of 16 years, but if by way of proposed amendment, the admissions given by the petitioners/original defendants are attempted to be withdrawn or defeat the right created or accrued with the opposite party, then 9 such amendment not to be allowed. It is but natural if such amendment to be allowed, it will certainly change the nature of the suit and the cause of action also. In the premise, so far as the submissions across the bar that the amendment is in the form of explanation and will not withdraw the admissions given by the petitioners in favour of the first respondent, are devoid of any merit. Thus I do not find any fault with the order passed by the Trial Court which require any interference at the hands of this Court. 9. In the premise, the writ petition is devoid of any merit and hence to be dismissed in limine. Rule stands discharged accordingly. Writ petition stands dismissed with no order as to costs. (A.V.POTDAR, J.) khs/wp5507-08