1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2334 OF 2009 Bhikaji Chandrappa Kamble & Anr. ...Petitioners vs. Mallikarjun Chanbasayya Devrumath ...Respondent Mr.Rahul Walvekar for the petitioner Mr.A.M.Kulkarni for the respondent CORAM :A.S.OKA,J. DATE : SEPTEMBER 22, 2009 P.C. 1 Heard the learned counsel for the petitioners. The petitioners are the original defendants. The 1 st to 5 th respondents filed a suit for perpetual injunction restraining the petitioners from interfering with their alleged possession over the suit property. An application for temporary injunction was made by the 1 st to 5 th respondents in the said suit. A written statement to the said suit was filed by the petitioners in which the entire claim in the plaint was admitted. In fact, in paragraph 4 of the written statement, petitioners came out with the case that they do not intend to obstruct the possession of the 1 st to 5th respondents over the suit property. Initially, an application was made by the petitioners at Exh.12 by invoking section 151 of the Code of Civil Procedure,1908. In the said application it was 2 contended that the petitioners were compelled by the concerned respondents to file earlier written statement containing admissions. A prayer was made in the said application that the petitioners be permitted to file a proper written statement. By a detailed order dated 6 th February 2008, the said application was rejected by the trial court. Thereafter, the petitioners filed an application for amendment of the written statement. The prayer in the said application was for seeking permission to add paragraphs 6(A) to 6(D) to the written statement. By the proposed amendment it was sought to be contended that the petitioners were not admitting the case made out by the 1 st to 5 th respondents in the plaint and that the petitioners have been in possession of the suit property. By the impugned order, the said application has been rejected by the trial court by holding that the by the proposed amendment, the petitioners are seeking to withdraw the admissions in their earlier written statement. 2 The learned counsel for the petitioners submitted that by the application on which impugned order has been passed the petitioners were not seeking to delete the averments made in the earlier written statement but the petitioners were desirous of adding paragraphs to the existing written statement. He submitted that a defendant can always take inconsistent pleas in the written statement and therefore, it was permissible for 3 the petitioners to amend the written statement and to claim that in fact the petitioners were in possession of the suit property. He submitted that the earlier application made out by petitioners was rejected on the ground that the same was not maintainable. He submitted that at highest, the case sought to be made out by the petitioners can be said to be inconsistent with the case made out in the original written statement and the petitioners being the defendants, such pleadings are permissible in law. 3 I have considered the submissions. Perusal of the original written statement filed by the petitioners shows that the petitioners admitted the averments made in the plaint as well as in the application for temporary injunction. A specific assertion was made by the petitioners that the 1 st to 5 th respondents-plaintiffs were in possession of the suit property and that the petitioners or their predecessors were never concerned with the suit property. Earlier application was made for permitting them to file an appropriate written statement. Apart from holding that there is no provision of law under which a fresh written statement can be filed, the trial court by a detailed Judgment and Order dated 6 th February 2008 observed that the entire attempt of the petitioners was to withdraw the admissions given in the written statement. The said order has not been challenged by the petitioners. 4 4 By the proposed amendment, the petitioners desire to say that the contents of the written statement are not true and correct. The petitioners want to say that the suit property was in possession of their predecessor and the petitioners continued to be in possession of the suit property. It is sought to be contended that by pressurising the petitioners, the respondents compelled them to file the earlier written statement. 5 Though the application for amendment purports to add four paragraphs to the earlier written statement, it is apparent that the petitioners want to withdraw the unequivocal admission that they or their predecessors were never in possession of the suit property and that the respondents were in possession of the suit property. While rejecting the earlier application made by the petitioners, there is a finding recorded that the petitioners have filed earlier written statement which was duly affirmed before the an Officer of the court. It was held that an attempt made by the petitioners to resile from the admissions could not be tolerated. 6 This is not a case where interference can be made under Article 227 of the Constitution of India. Writ Petition is rejected. JUDGE