: 1 : 1659-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1659 OF 2011 M/s. Nandini Kailash Shinde & Ors. .. Petitioners v/s. Genu Baban Gaikar & Ors. .. Respondents ......... Mr. Uday P. Warunjikar for the petitioner Mr. Girish R. Agarwal for the respondents ......... CORAM : R.Y.GANOO, J DATE : 14th SEPTEMBER,2011. P.C. : 1. Rule. 2. Rule made returnable forthwith. Learned advocate appearing on behalf of respondents waives service. By consent, taken up for hearing forthwith. 3. The petitioners herein filed R.C. Suit No.464 of 1997 in the Court of learned Civil Judge Senior Division, Nashik for seeking prayers that the petitioners are in possession of the suit property and their possession should not be disturbed. The respondents filed written statement and : 2 : 1659-11-wp=.sxw thereafter in April, 2010 filed an application for amendment of the written statement below Exh.160. That application came to be granted by learned 7th Joint Civil Judge Senior Division, Nashik by Judgment and Order dated 2nd December, 2010. This order dated 2nd December, 2010 is challenged in this petition. 4. I have heard learned advocates on both sides. I have perused the text of the Application at Exh.160. A perusal of the said application goes to show that the respondents by adding paragraph 14A are seeking possession in respect of the suit property. By paragraph 14B, the respondents are agreeable to pay the necessary Court fees. The learned 7th Joint Civil Judge Senior Division, Nashik has granted this application. I have perused the impugned order. 5. A perusal of the paragraph 14A and 14B, which are proposed to be added clearly go to show that the respondents are seeking substantive reliefs and those reliefs could have been sought by the respondents by filing a counter-claim at the time of filing of the written statement itself in the style “written statement cum counter claim”. If that could have been done, it was open for the respondents to seek reliefs as regards possession, : 3 : 1659-11-wp=.sxw which would have been considered by the Court on merits. 6. The grant of amendment which is sought, just cannot be granted because in a typical written statement, the defendants cannot ask for substantive prayers. If the petitioners are interested in asking for substantive prayers at the stage when the suit is being decided, it is necessary for the petitioners to file a counter-claim. In the present case, the amendment has been wrongly granted. The aforesaid principles have not been applied by the learned Judge. To that extent the learned Judge has erred. 7. If the respondents are now interested in seeking possession in respect of the suit premises, they are free to institute a separate suit. Of Course, the said suit will be attended to in accordance with the provisions of law. With the aforesaid observations, the impugned Judgment and Order dated 2nd December, 2010 passed by the 7th Joint Civil Judge Senior Division, Nashik is set aside. Petition stands disposed of in the above terms with no orders as to costs. (R.Y.GANOO, J.)