1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.272 OF 2004 Shri Cain D'Cruz, & Anr. …. Petitioners V/s Shri Leopoldo Vaz (since dec.) & Ors. …. Respondents Mr. D. Pangam, Advocate for the Petitioners. CORAM : N.A. BRITTO J. DATE : 7th MAY, 2010 ORDER: The petitioners herein are defendants nos.2 & 3 in Special Civil Suit No.7/2002/A. In this Writ Petition, they challenge the order dated 20/04/2004 of the learned Civil Judge, Senior Division, by which the defendant no.1 has been allowed, with the consent of the plaintiffs in the said Civil Suit, to withdraw the written statement cum counter claim filed by him and replace by a fresh written statement. 2. The defendant no.1 was married to late Maria Juliet Carneiro who expired on 12/04/1992, leaving behind defendant no.1 as the surviving spouse, plaintiff no.1 and defendant no.4 as their sons and defendant no.6 as their daughter. The defendant no.5 is the divorcee wife of defendant no.4 and defendant no.7 is the husband of defendant no.6. On account of certain differences between the plaintiffs and defendant no.1, the defendant no.1 (father) sold to defendant no.2 (son) 2 by sale deed dated 12/09/2001, the suit property surveyed under no.56/4 of village Rachol along with 2 houses namely their ancestral houses bearing H. No.235 and an out house bearing no.236. The plaintiffs filed the suit, inter alia, for declaration that the said sale deed by defendant no.1 in favour of defendant no.2 was a nullity on the ground that the plaintiffs were the co-owners along with defendant no.1 and defendants nos.4 to 7 of the said property and had a right to oP.T. for preemP.T.ion as far as the share of defendant no.1 was concerned as share of their mother Maria Juliet Carneiro already belonged to the plaintiffs and defendants nos. 4 to 7. 3. Be that as it may, the defendant no.1 filed an application dated 28/01/2004, which was not objected to by the plaintiffs, for withdrawal of the written statement cum counter claim. It was objected to by defendants nos.2 & 3 contending that the application was not maintainable on the specious plea that the written statement was not drafted as per his instructions and that the written statement filed was based on letter dated 10/01/2001 sent in reply to the notice issued by advocate of the plaintiffs dated 5/11/2001. It was also contended on behalf of defendants nos. 2 & 3 that defendant no.1 had failed to pay fees of Rs.34,000/- of earlier advocate Shri M.P. Diniz and the brief was returned to defendant no.2 without payment of the said fees. 3 4. The learned trial Court acceP.T.ing the contention of the defendant no.1 that the written statement was not drafted as per his instructions as defendants nos.1,2 & 3 had a common advocate, permitted the defendant no.1 to withdraw the written statement cum counter claim and file his proper defence. 5. The plaintiffs nor defendants nos.2,3,7, who now represent the estate of deceased defendant no.1 have contested this Writ Petition. Shri Pangam, the learned Counsel appearing on behalf of the petitioners/defendants nos.2 & 3 submits that the written statement filed by defendant no.1 was based on letter dated 10/11/2001 written by defendant no.1 himself and contends that the learned trial Court could not have allowed defendant no.1 to withdraw the written statement and relying on the case of Kallampudi Narayanappa V/s. Kaligotla Suryanarayana and others (AIR (37) 1950 Madras 46) submits that such a procedure is unknown to C.P.C. and further submits that the withdrawal of the written statement cum counter claim by defendant no.1 amounted to withdrawal of admissions made by him in favour of defendants no.2 & 3 and in this context, the learned Counsel Shri Pangam has placed reliance on the case of Armando Santano Pereira & anr. V/s. Jude John D'Souza & Ors. (2009 (3) Bom.C.R. 147) contending that an admission in favour of one defendant could not be withdrawn by other defendants by amending the written statement. 4 6. In the case of Kallampudi Narayanappa V/s. Kaligotla Suryanarayana and others (supra) it has been held that there is no provision in the C.P.C. to enable the Court to permit the substitution in toto of one written statement by another. In my view this decision would not be applicable to the facts of this case, because the written statement filed by defendant no.1 was allowed to be withdrawn with the consent of the plaintiffs. There is nothing which cannot be done in a given case with consent of the parties and the civil procedure prescribed cannot come in their way. The case of Armando Santano Pereira & anr. V/s. Jude John D'Souza & Ors. (supra) was a case where there was an admission made by defendants nos. 3 & 4. It was pleaded by defendant no.1 that he had purchased the suit property in the name of defendant no.3 from his own funds and the defendants nos.3 & 4, by their original written statement had endorsed that stand of defendant no.1 and thereafter by way of amendment they wanted to omit that paragraph in the written statement thereby withdrawing the admission made and it is in that context that this Court held that the said defendants simply wanted to withdraw, the original written statement, substitute the same with the new one and withdraw the admission which they cannot, in terms of law. However, that is not the case at hand. In the case at hand, defendants nos. 2 & 3/the petitioners herein, did not at all take a plea in their objections dated 3/02/2004 that there was any admission 5 made in their favour by defendant no.1 which defendant no.1 wanted to withdraw, by withdrawing the written statement, and that being the case, in my opinion, defendants nos. 2 & 3 cannot be allowed to urge this plea for the first time in writ jurisdiction, when they had not taken such a plea before the learned trial Court in as much as it is also not demonstrated as to which of the admissions in their favour would be likely to be withdrawn, with the withdrawal of the written statement by defendant no.1. 7. Be that as it may, the defendant no.1 has now expired and defendants no.2 to 7 are his legal representatives. Needless to say defendant no.1 is not there to file proper defence by way of another written statement and in this view of the matter also this is not a fit case to interfere in writ jurisdiction. Defendants nos. 4 to 7 had not contested the claim of plaintiffs by filing a written statement. Consequently, the Writ Petition is hereby dismissed. N.A. BRITTO, J. NH/-