-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 663 OF 2010 1. Shri Prabhakar Purushottam Malik, of major age, Indian National, resident of Kudne, Sanquelim, Goa. 2. Smt. Pushpawati Prabhakar Malik, of major age, Indian National, Occupation household, resident of Kudne, Sanquelim, Goa. …. Petitioners V e r s u s 1. Shri Datta Pandurang Malik, 2. Smt. Pornima Datta Malik, 3. Shri Mangesh Laxman Malik, 4. Smt. Mangala Mangesh Malik, All residents of Gaonkarwado, Kudne – Sanquelim, Goa. 5. Shri Ganpatrao Shyamrao Vishwasrao Dessai (since deceased) through his legal heirs:- (a) Shri Shyamrao Ganpatrao Dessai, (b) Shri Rajeev Ganpatrao Dessai, (c) Shri Mahesh Ganpatrao Dessai, (d) Miss Rekha Ganpatrao Dessai, All residents of House No.19, Lamgao, Bicholim – Goa. 6. Smt. Krishnabai Regulo Malik (since deceased) through her legal heirs : (a) Laxmibai Gurudas Malik, (b) Keshav Gurudas Malik, (c) Trupti Keshav Malik, All residents of House No.301, Savitri Niwas, Alto Porvorim, Bardez – Goa. (d) Vasant Sukdo Malik, (since deceased) through his legal heirs : (1) Shri Vallabh Vasant Malik (Son), -2- (2) Smt. Vaibhavi Vallabh Malik (daughter-in-law), (3) Shri Pradeep Vasant Malik (son) (4) Smt. Shailaja Pradeep Malik (daughter-in-law), (5) Shri Sunil Vasant Malik (son), (6) Shri Mahesh Vasant Malik (son), (7) Shri Rajendra Raghuvir Bhagat Amonkar (son-in-law) (8) Smt. Riya alias Smita Rajendra Bhagat Amonkar (daughter) (e) Sumati Vasant Malik, both residents of Marra, Pilerne, Bardez-Goa. (f) Shrimati Shripad Malik, (g) Sandeep Shripad Malik, Both residents of Marra, Pilerne, Bardez-Goa. (h) Anand Ramchandra Malik, (i) Smt. Meera Annd Malik, Both residents of Marra, Pilerne, Bardez – Goa. …. Respondents Shri S.D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Petitioners. Shri J.E. Coelho Pereira, Senior Advocate with Shri S. Karpe, Advocate for Respondents Nos.1 to 4. Coram :- F. M. REIS, J Date : 21 st September, 2011. ORAL JUDGMENT Heard Shri S.D. Lotlikar, learned Senior Counsel appearing for the petitioners and Shri J.E. Coelho Pereira, learned Senior Counsel appearing for respondents nos.1 to 4. 2. Rule. Heard forthwith with the consent of both the parties. -3- Respondents waive service. 3. The above petition challenges the orders dated 18/01/2010 and 25/06/2010, whereby the claims filed by the Petitioner was partly allowed in connection with the grievances raised by the Petitioners in respect of the amendment carried out by the Respondents to the written statement pursuant to the Orders passed by this Court dated 12/02/2009 in Writ Petition No.777/2008. 4. Shri S. D. Lotlikar, learned Senior Counsel appearing for the Petitioners, has assailed the impugned Orders and pointed out that the amendment carried out by the Respondents is totally contrary to the Order passed by this Court dated 12.02.2009. The learned Senior Counsel has essentially taken me through the application for amendment originally filed by the Respondents and pointed out that paras 5(a) and 5(b), wherein the admissions made by the Respondents were sought to be withdrawn have been specifically refused by this Court by the said Order and, as such, the question of allowing the amendment of the written statement as proposed in paras 5(a) and 5(b) does not arise at all. The learned Counsel further points out that by incorporating the said paras 5(a) and 5(b), the Respondents are trying to withdraw their admissions. The learned Counsel pointed out that the impugned Orders allowing the insertion of paras 5(a) and (b) to the written statement, deserves to be quashed and set aside. 5. On the other hand, Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Respondent nos. 1 to 4, has supported the impugned Orders. The learned Counsel has further pointed out that the substantial part of para 5(a) -4- and 5(b) are clarificatory and explanatory in nature which were allowed to be incorporated. 6. As such, considering the impugned Orders passed by the learned Trial Judge, I find that the learned Judge was not justified in allowing that Paras 5(a) and (b) of the proposed amendment to be part of the pleadings of the written statement which appear to have been disallowed by this Court. But, however, the remaining paras 5(c) to 5(s) sought to be incorporated can be allowed to be incorporated in the written statement. But, however, considering the facts and circumstances of the case and on perusal of the said proposed amendment of paragraphs 5(a) and 5(b) being of an extensive nature, I find it appropriate that the Respondent be permitted to be given an opportunity to file and application to amend the written statement only to incorporate proposed pleadings mentioned at paras 5(a) and 5(b) by restricting them only to the extent they clarify/explain their original stand in the written statement. In case such an application is filed, the Petitioners would be entitled to be heard and the learned Judge shall consider such application for amendment in accordance with law. At this stage, the Respondents are not entitled to incorporate said paragraphs 5(a) and (b) in the written statement. 7. In view of the above, the impugned orders dated 18/01/2010 and 25/06/2010 are modified to the extent that the amendment as sought to be incorporated in paras 5(a) and 5(b) in the amendment application are quashed and set aside. The remaining part of the order is upheld and the Respondents are permitted to incorporate para 5(c) to 5(s) in their written statement subject to the liberty to the Respondents to file an application for amendment in the light of the -5- observations made hereinabove. 8. Rule is disposed of in the above terms. 9. The above Petition stands accordingly disposed of with no order as to costs. F .M. REIS, J. arp/*