:1: 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. 7334 OF 2002 PETITION NO. 7334 OF 2002 PETITION NO. 7334 OF 2002 Shri Ganesh Sadashiv Potdar, since deceased by his heir :- Bhaskar Ganesh Potdar. ... Petitioner. V/s. Village Panchayat Jambholi through Sarpanch Shri Babasaheb Gopala Yadav & Ors. ... Respondents. Mr. V.B. Rajure for the Petitioner. Mr. D.V. Sutar for Respondent No.3. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 21ST 21ST 21ST APRIL 2009. APRIL 2009. APRIL 2009. P.C. P.C. P.C. : : : . Rule. By consent, taken up for hearing and final disposal. 2. The Petitioner is the Original Plaintiff. He has filed a Suit against the Respondents being Suit No.1898 of 1993 for permanent injunction, restraining the First Respondent from demolition of the construction which is subject matter of the Suit. 3. It is not necessary to go into the pleas on merits because the Petitioner challenges an order passed by the Trial Court rejecting his application made on 23rd April 2002. :2: 4. It is the case of the Plaintiff in the Application that after the Suit Summons was served, the First Respondent filed a Written Statement which was taken on record. Subsequently, one Balasaheb Hari Chavan purporting to represent Defendant No.1/Respondent No.1 Panchayat filed a written statement and he alleged that the earlier written statement should not be taken as the stand of the Gram Panchayat because there is collusion between the Petitioner - Plaintiff and the then Sarpanch of the Gram Panchayat. The case of the Petitioner is that there cannot be two written statements. One Written Statement is already taken on record and it would not have been replaced or substituted by another Written Statement. Therefore, the subsequent Written Statement be rejected was the request made. 5. The Trial Court, after hearing both sides, rejected the application and that is how this Writ Petition. 6. The only reason assigned by the Trial Court for rejecting the Petitioner’s Application is that an order was passed on 9th June 1995 accepting the subsequent Written Statement. The Petitioner did not file any Review Application nor challenged this order in the higher Court. Therefore, he is precluded from making an application to reject the subsequent Written Statement. :3: 7. A reading of the entire order makes it abundantly clear that the learned Judge has refused to consider the pleas raised by the Petitioner and the relevant provisions of law. He has rejected the request of the Petitioner on the grounds of delay and also because subsequent Written Statements are accepted by the Court. Thirdly, he accepted the plea of the First Defendant - Panchayat that the earlier Written Statement was filed by a person having no authority. 8. To my mind, all these reasons are patently unsustainable. It is not disputed before me that the course open for the First Respondent was to apply for amendment to its Written Statement filed earlier but it could not have replaced it or filed another Written Statement when the earlier was on record. Merely because the Petitioner has not challenged the said course of action at the relevant time does not mean that the Court was prevented from considering his request made later on. In my view, the order under challenge is vitiated by an error apparent on the face of the record and requires to be quashed and set aside. It is, accordingly, quashed and set aside. The Application made by the Petitioner (Exhibit 70) is allowed. The subsequent Written Statement filed by Respondent No.1 dated 22nd September 1994 is rejected. However, the First Respondent is at liberty to apply for amendment to the first Written Statement and :4: such an application, if made, should be considered by the Court below on its own merits and in accordance with law uninfluenced by the fact that the application made by the Petitioner - Plaintiff is allowed by this Court. Rule is made absolute accordingly. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)