ssm ssm ssm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6828 OF 2008 PETITION NO. 6828 OF 2008 PETITION NO. 6828 OF 2008 Chandrakishore Alopiprasad Chaudhary & Anr. ....Petitioners. Vs. Surendra Chaudhary & Ors. ....Respondents. Mr.G.S.Godbole i/by Mr.S.H.Joshi for the Petitioners. Mr.C.J.Sawant, Sr.Counsel i/by Mr. Raja S.Ghadge for Respondent No.1. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 28th November, 2008. : 28th November, 2008. : 28th November, 2008. P.C.:- P.C.:- P.C.:- The Petitioners-Defendants have challenged the impugned order dated 21/08/2008 passed by the learned Civil Judge, Senior Division, Palghar, whereby the plaintiff’s amendment application is allowed. 2. Admittedly, the suit is for partition, possession and perpetual injunction. The issues are not yet framed. The Respondents filed this Application for amendment to bring more particulars and material on record. The submission is that the admission already given, just cannot be withdrawn as done in the present case by the Plaintiff. The learned Judge, after considering the earlier withdrawal of application Exhibit 60 as liberty was granted to file fresh ( 2 ) application for amendment, granted the present amendment application, as there was no strong opposition with regard to the para 1 and 3, but there was strong opposition to the deletion of 10 lines of para 4. After considering the earlier plaint as well as the Written Statement filed by the parties, as at this stage there are some averments made and which they want to withdraw, which according to the Petitioner that amounts to withdrawal of the admission is not correct. The Plaintiff is not coming with the total new theory which changes the whole concept of the suit and prayer. The addition of more background and related events are necessary for proper adjudication for such suit for partition. this stage need to be decided. Any detailed history of the suit premises and material which are in consonance with the plaint, as well as, the written statement filed by the other defendants in no way causes prejudice to the parties at the stage of the proceedings. The pleadings, even so added and or deleted need to be proved and or decided by the Court after considering the rival contention of the parties. Therefore, maximum details if plaintiffs want to put up on record just cannot be rejected. Some more details about the property and or such other property which are ( 3 ) relevant for adjudication of the suit for partition, just cannot be overlooked. 3. The reliance placed on Gautam Sarup Vs. Leela Jetly Gautam Sarup Vs. Leela Jetly Gautam Sarup Vs. Leela Jetly & Ors. 2008 (7) S.C.C. 85 Ors. 2008 (7) S.C.C. 85 Ors. 2008 (7) S.C.C. 85, in no way assist the Petitioner in the facts and circumstances of the case. The amendment as sought, cannot be said to be resiling from the admission already made. The admission, even if any, as can be elaborated or explained during the trial, any admission just cannot be overlooked, specially in the suit for partition like this. The Apex Court in the same Judgment has reiterated that "a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified". Historical background in a suit for partition and the possession always play important role. It is necessary for proper adjudication of the matter. The reasoning given by the Court while granting amendment, therefore, cannot be said to be perverse. So called admission if any, even explainable, and can be clarified and in the present suit and at this earlier stage if such amendment is made and considering the total pleading as stand today, I see there is no reason to interfere with the grant of amendment, in the interest of justice and to give full opportunity to both the parties. There is no opposition ( 4 ) from other defendants- co-sharers except the Petitioners. 4. With regard to the joining Defendant No.6-A as a party, in my view also need no interference as the Court has considered the fact that being co-owner pursuance to Will dated 17/09/1991 he has interest in the land of half portion of land survey No. 5, 6/2, 8/2, 8/3 and 42, therefore, he is a necessary party in the present suit. 5. Taking all this into account, if such amendment is required for proper and to effect controversy between the parties and to avoid multiplicity of the proceedings and to give full opportunity to both the parties, as here the suit is for partition and the parties are interested equally in the property, I see no case is made out to interfere the reasoned order passed by the Courts below. There is no perversity. There is no case made out to invoke Article 227 of the Constitution of India against the interlocutory order of granting amendment in favour of the Plaintiff at this stage even when the issues were not framed in a suit of the year 2006. ( 5 ) 6. In view of this, the Petition is dismissed. Rule discharged. No order as to costs. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)