skt/- 1 35.wp.3857.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 3857 OF 2009 Krishnaji Dattatraya Velankar ...Petitioner. Vs. Didyadhar G. Patwardhan since deceased through legal heirs Jayant Krishnaji Patwardhan & Ors. ...Respondents. ..... Mr.G.S.Godbole i/by Ms.M.S.Parasnis, advocate for the petitioner. Mr.S.G.Deshmukh i/by Mr.R.M.Sathe, advocate for the respondent no.1E. ..... CORAM :- A.S.OKA, J. DATED :- 19TH MARCH, 2010. P.C.- 1. The submissions of the learned counsel appearing for the parties were heard on the earlier date. The parties were put to notice that the petition will be disposed of finally at the stage of admission. 2. By this writ petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the judgment and order dated 27th February 2009 passed by the trial Court below skt/- 2 35.wp.3857.09.sxw application at Exh.232. The facts leading to filing of application at Exh.232 will have to be considered in detail. The petitioner is the original plaintiff, who filed a suit for specific performance of agreement of sale of immovable property. In the appeal arising out of the said suit, this Court passed a decree for specific performance. A direction was also issued to hold an inquiry for determination of mesne profits in accordance with provisions of Rule 12(1)(c) of Order XX of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”). Accordingly, an application was filed by the petitioner for determination of mesne profits. The application was contested by the Opponents who were the original defendants by filing a reply/written statement. During the pendency of the said application for determination of mesne profits, in June 2007, the 1st opponent thereto Vidyadhar Govind Patwardhan expired. The legal representatives of said Vidyadhar were brought on record who are the Respondents Nos.1A to 1E herein. 3. An application was made by respondent no.1E seeking permission to file the additional written statement. The said application was filed as trial Court passed an order against the legal representatives skt/- 3 35.wp.3857.09.sxw directing that no additional written statement has been filed by them. The said application was contested by the petitioner by pointing out that the respondent no.1E has been impleaded in his capacity as a legal representative. The trial Court permitted the said respondent No.1E to file additional written statement. An application was made by the petitioner at Exh.213 praying that the additional written statement filed by respondent no.1E be de- exhibited. An application was made by respondent no.1E for framing additional issues. The application for framing additional issues at Exh.222 was allowed by the trial Court by order dated 19th September 2008. It must be noted here that the application made by the petitioner at Exh.213 was decided by the trial Court by order dated 25th August 2008 and the prayer made in the said application at Exh.213 was rejected. 4. A writ petition was preferred by the petitioner being writ petition no. 8029 of 2008 for challenging the order below Exhibit – 213. The said writ petition was disposed of by this Court by judgment and order dated 15th January 2009. This Court permitted the petitioner to move the learned trial judge by specifically pointing out the portions of the written statement filed by respondent no.1E skt/- 4 35.wp.3857.09.sxw which are inconsistent with the original written statement of the original respondent No.1. This Court permitted the petitioner to file a fresh application in that behalf and directed that said application shall be decided by the trial Court on its own merits. This Court further directed that after the said application was decided, the trial Court should take up the matter for framing additional issues, if necessary. On the basis of the liberty granted by this Court, an application was made by the petitioner in the trial Court raising specific objections to certain paragraphs of the written statement filed by the respondent no.1E. The said application at Exh.232 has been rejected by the trial Court by the impugned order. 5. The learned counsel appearing for the petitioner has invited my attention to the averments made in the original written statement of the deceased 1st respondent and the additional written statement filed by respondent no.1E. He has pointed out the objectionable parts of the said written statement was filed by respondent no.1E. His submission is that respondent no.1E is made a party as a legal representative of the deceased 1st respondent and in his capacity as a legal representative, he cannot take up any stand which is inconsistent with the stand skt/- 5 35.wp.3857.09.sxw taken by his predecessor. He submitted that the defence of the legal representative has to be consistent with the defence already taken by his deceased predecessor. He has raised an objection to paragraph nos. 3, 5, 6, 7, 8, 9 and 13 of the written statement of respondent no.1E and pointed out that the stand taken therein is completely inconsistent with the stand taken by deceased 1st respondent. He submitted that there is a complete non-application of mind by the trial Court on this aspect while deciding the application below Exh.232. The learned counsel appearing for respondent no.1E supported the impugned order. He has invited my attention to the averments made in the additional written statement filed by respondent no.1E. He pointed out that respondent no.1E cannot be prevented from raising defences which were not taken by the original respondent no.1. He submitted that at highest, the petitioner can cross examine respondent no.1E, but at the threshold, no part of the additional written statement can be ordered to be deleted. He submitted that while deciding application below Exh.232, the learned trial skt/- 6 35.wp.3857.09.sxw judge has applied his mind to the contentions raised in the original written statement of the 1st respondent and the averments in additional written statement of respondent no. 1E. He submitted that no interference is called for with impugned judgment and order. 6. I have carefully considered the submissions. By the judgment and order dated 15th January 2009, this Court granted liberty to the petitioner to make an application specifically pointing out as to which portions of the additional written statement of respondent no.1E were inconsistent with the plea taken by the 1st respondent. While directing the trial Court to decide the said application, this Court observed that it is well established position that the legal representative after being brought on record is bound by the written statement filed by his predecessor and the legal representative cannot be allowed to take a stand which is inconsistent thereto. In the light of the said observation made by this Court, the submissions made by the learned counsel appearing for the parties will have to be considered. It must be noted herein what is pending is the skt/- 7 35.wp.3857.09.sxw only an application for determination of mesne profits and the decree passed by this Court in appeal has attained finality. 7. In paragraph 3 of the additional written statement of respondent no.1E, he has stated the said respondent is neither a legal heir, nor a successor to the estate of the deceased 1 st respondent and that he has been wrongly impleaded as a legal heir and representative of the deceased 1 st respondent. In paragraph 5 of the additional written statement of respondent no.1E, he has contended that the petitioner has not come with the clean hands and is not entitled to claim mense profits from the deceased 1 st respondent. In paragraph 6 of the additional written statement of respondent no.1E, it is contended that the petitioner did not pay a sum of Rs.55,000/- to the original 1 st respondent in his lifetime. It was contended that the Petitioner had taken loan from a Bank and the 1 st Respondent was a guarantor for repayment of the loan amount. It is stated that the 1 st Respondent had executed a mortgage in respect of the suit property as a security for repayment of loan by the Petitioner. In paragraph 7 of the skt/- 8 35.wp.3857.09.sxw additional written statement, the respondent no.1E has disputed the payment of consideration which is the subject matter of the suit for the specific performance. In paragraph 8 of the additional written statement, the respondent no.1E has pointed out that the petitioner has taken possession of the suit land without making any payment of consideration to the deceased respondent no.1 and that he has taken possession of the area which is more than the area which was subject matter of the suit. In paragraph 9 of the additional written statement, it is alleged that as the suit property was in possession of the tenants, the Respondent No.1 did not earn any income. In paragraph 13 of the written statement, it is contended by respondent no.1E that the proceedings for fixation of the mense profit stands abated. 8. It must be noted here that respondent no.1E had also represented the original respondent no.1 as his constituted attorney. The respondent no.1E has been impleaded in the application for mesne profits as a legal representative of the deceased respondent no.1. As far as paragraph nos. 5, 6 and skt/- 9 35.wp.3857.09.sxw 7 of the additional written statement filed by respondent no.1E are concerned, it is obvious that the said defences were neither available to respondent no.1 nor raised by the Respondent No.1. As far as paragraph 8 is concerned, respondent no.1E has contended that the claim for mense profit is not legal. The said contention is not consistent. The only objectionable part of the said paragraph is where respondent no.1E has alleged that the petitioner by playing mischief and fraud had taken possession of the suit land without making payment of any consideration to the 1st respondent. Such contention could not have been raised by respondent no.1E as no such plea has been raised by the deceased respondent no. 1 in his written statement. As far as paragraph 9 of the written statement is concerned, the defence raised therein cannot be said to be inconsistent with the plea taken by the 1st respondent in his written statement. In Paragraph 13, a legal contention is taken by respondent no.1E in his capacity as a legal representative by pointing out that the proceeding for fixation of mense profits stands abated. skt/- 10 35.wp.3857.09.sxw 9. As pointed out earlier, respondent no.1E has been impleaded as a legal representative of deceased 1st respondent. In paragraph 3 of the written statement, the Respondent no.1E has disputed his status as a legal representative. The said defence can be raised by the said Respondent as it cannot be said to be inconsistent with any plea in the written statement of the original respondent no.1. As far as paragraph 7 of the additional written statement is concerned, the earlier part of the paragraph deals with the payment of consideration. The later part alleges that the Petitioner has taken over possession of an area which is more the area covered by the decree. The first contention is inconsistent with the written statement of the 1st Respondent. The second contention has been specifically taken in paragraph 8 of the additional written statement. 10. Therefore, the sum and substance of the aforesaid discussion is that paragraphs nos. 5, 6, 7 and a part of paragraph 8 will have to be struck out from the written statement of respondent no.1E as is being inconsistent with the written statement of 1st skt/- 11 35.wp.3857.09.sxw respondent and therefore the petition must succeed in part. Hence, I pass the following order : (i) The impugned order dated 27th February 2009 is modified. (ii) Paragraph Nos. 5, 6, 7 of the additional written statement of respondent no.1E are ordered to be struck out. The portion of paragraph 8 of the additional written statement starting from the words “....Thus the Applicant by playing mischief ..........and ending with the words “ .........any payment of consideration to the Opponent No.1and ”..... shall be struck out. However, the rest of the paragraph 8 is maintained. (iii). The petition is partly allowed in above terms with no orders as to costs. (iv) It is made clear that all the contentions of the parties on merits are kept open. (A.S.OKA, J.)