1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 7728 OF 2010 Narasgonda Sidgonda Patil & Others ...Petitioners Versus Sonubai Sattappa Patil & Others ...Respondents Mr.Surel Shah for the Petitioners Mr.Vijay Killedar for the Respondents CORAM:- R.Y.GANOO, J. DATED:- 19th SEPTEMBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. 3. Learned Advocate appearing on behalf of the respondents waives service. By consent, petition is taken up for hearing. 4. In Regular Civil Suit No.712 of 2005 filed in the Court of learned Joint Civil Judge, Junior Division, Kolhapur, for partition, the defendants i.e. the present petitioners seem to have taken alternate 2 defences and according to the respondents those defences were conflicting and that is why Application at Exhibit 114 and 115 were made by the present respondents. The learned Joint Civil Judge, Junior Division, Kolhapur heard those applications and granted the same and specifically passed an order on 31st July, 2010 which is as follows: “ Defendant Nos.1 to 5 shall elect any of the defence raised by them in their written statement at Exhibit 21”. 5. I have heard learned Counsels on both sides. It is to be noted that it would not be proper for a Court to direct/call upon the defendants to accept/ retain one defence and give up the other defence. Such a view taken by the learned Judge is not correct. If the defendants take conflicting pleas, surely, such a stand would meet the consequences thereof at the time of trial. It is also possible for the trial Judge to control the evidence which can be placed before the Court at the hands of such a defendants who have taken conflicting pleas. In this view of the matter, a party cannot be told to accept one defence and give up the other. The impugned Order dated 31st July, 2010 cannot be accepted and the same is required to be set aside. Hence petition is disposed of by passing the following order. 3 ORDER i. Order dated 31st July, 2010 passed by the learned Civil Judge Junior Division, Kolhapur, below Exhibit 114 and 115 in Regular Civil Suit No.2125 of 2005 is set aside. ii. It will be open for the defendants to put up such defences which they wish to do, and that the trial judge will control the trial in accordance with the provisions of law. There shall be no order as to costs. (R.Y.GANOO, J.)