1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4866 OF 2008 Sonabai w/o.Pandurang Kotkar, Age-70 years, Occu-Household, R/o.Kumbhephal, Tq.Akole, Dist : Ahmednagar PETITIONER VERSUS Matsyagandha Ashok Ekhande, and others, All are R/o.Akole, Dist : Ahmednagar RESPONDENTS Mr.G.V.Wani, advocate for petitioner Mr.S.T.Shelke, advocate for respondent no.5 and 6 Remaining respondents absent even though duly served. (CORAM : A.V.POTDAR, J.) DATE : 10/06/2009 PER COURT : 1. By the present writ petition under Article 227 of The Constitution of India, the petition who is original defendant no.2 in Spl.C.S.No.5/2003 on the file of Civil Judge, S.D. Sangamner, have challenged the order passed below Exh.91 in the said suit. 2. The factual matrix can be summarixed that the respondent no. 1 have filed the suit against the present petitioner and others for partition and separate possession of the properties mentioned in 2 plaint para no.1. Inspite of due service of summons on the present petitioner, who is defendant no.2 in the Lower Court even though the petitioner appeared in the Court through the advocate, but failed to file written statement in support of her claim. Hence order of No W.S. Came to be passed. When the suit ripe up for hearing after the evidence of respondent no.1 who is the plaintiff in the Trial Court, this petitioner filed an application at Exh.91 before the Trial Court in a words even though she has not filed her written statement in the said suit, now she is filing the affidavit of her examination in chief in the Court. After the evidence of plaintiff is over and the plaintiff has filed evidence close pursis, she may be allowed to give the evidence in support of her claim. For the reasoned order on 10/04/2008, the Trial Court pleased to reject that application of which order is under challenge before this Court. 3. The Law is settled and clear on the point that unless there are pleadings, there can not be a evidence. The Law is settled that the parties to plead the facts and then to lead the evidence to prove those facts or to rebut the facts pleaded by the other side. In absence of pleadings, the party can not be allowed to lead the evidence of the facts not pleaded. There is only one exception to this settled principle of Law as it is provided under the provisions of Order 8 of CPC that even though no written statement is filed, the defendant is permitted to cross examine the plaintiff on law points only and not on the facts. In the instant case, there is no written statement, then no question arise to give the evidence of the facts which are not pleaded. In the 3 premise, the writ petition is devoid of any merit, and to be dismissed in limine at the stage of admission itself. Accordingly writ petition dismissed with no order as to costs. (A.V.POTDAR, J.) khs/wp4866-08