1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8800/2007 Shri.Bajrang Ganpati Bagam & Ors.. Petitioners Vs. Smt.Housabai Kalu Patil &Anr.... Respondents Adv.Shri.S.J.Ghogare for the petitioners None for the respondents Coram : A.A.Sayed,J. Date : 29th April,2008 P.C. 1] This petition has been filed challenging the order dt.14-9-2007 passed by the Civil Judge ,J.D.Malkapur at Shahuwadi , whereby the application for amendment of the written statement of the petitioners was rejected. 2] The suit is filed by the respondents for partition. The geneology of the parties are set out at page -30 of the petition . One Bala was the owner of the suit properties. The said Bala died leaving behind him three sons namely Bhavana,Ganapati and Vithu. Vithu died without leaving any heir .The present petitioners are 2 from the linage of Ganpati and the present respondents are from the linage of Bhavana and are his daughters. 3] The case of the respondents in the suit filed by them was that the lands in question are joint family properties and that they have ½ share therein. The case of the petitioners in the written statement was that the respondents were not in possession of the suit properties since 1980 and that the petitioners were in exclusive possession of the entire property and,therefore, they have become owners of the suit lands by adverse possession. 4] By way of amendment, the petitioners want to rely upon unregistered sale deed dt.7- 10-1929 and now plead in defence that Gat no.320 was self acquired property of Gapati and therefore,could not be the subject matter of the suit for partition. 5] The learned counsel for the petitioner submitted that the Courts are required to take liberal view in allowing amendments in written statement and substantial justice is required to be done. The learned counsel for the petitioner relied upon the decision in case of 3 Bharat Petroleum Corporation Ltd. Vs. Precious Finance Investment Pvt.Ltd. Reported in 2007 (1) Mh.L.J.331 .He also relied upon the decision in case of Baburao s/o Sahebrao Deshmukh Vs. Maharashtra Insecticides Limited Akola and others, reported in 2004 Mh.L.J.Page- 717. Relying upon the above decisions the learned counsel submitted that Order-6 Rule-17 is procedural and not a part of substantive law and that it does not specifically take away the power of the Court to allow the amendment even after commencement of the trial. He further submitted that the amendment can be allowed at any stage of the proceedings. He further submitted that the Court is required to take liberal view in allowing amendment of the written statement vis a vis that of a plaint. The question of prejudice is less likely to operate in the same rigour in the former than in latter case . 6] I perused the impugned order and the material on record including the decisions cited by the learned counsel for the petitioner. In my view the Trial Court was right in rejecting the application of the petitioners as allowing the amendment and permitting the petitioners to now rely upon 4 unregistered sale deed dt.7-10-1929 would result in prejudice to the respondents particularly because the petitioners have made admissions in the written statement relating to the title of the respondents to the suit lands. In their W.S,the petitioners have not disputed that title of the respondents as such and claim the suit lands on the basis of adverse possession. By way of amendment ,the petitioners want to dispute the title of the respondents by relying upon an unregistered sale deed of 1929 in respect of Gat no.320 and by allowing the amendment,prejudice would be caused to them. Prima facie it cannot be believed that the father of the petitioners did not inform the petitioners during his life time that the suit lands were bought over by him in the year 1929 .By allowing the amendment,the petitioners would be allowed to withdraw the admissions made by them. In case of Bharat Petroleum Corporation (supra) relied upon by the learned counsel ,the Court has also held that inconsistent plea, can be allowed to be raised by the defendants in the written statement, however,an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement ,however, cannot be allowed. 5 If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. 7] In this view of the matter, I find that no case for interference has been made out to set aside the impugned order by this Court in exercise of it supervisory jurisdiction under Article 227 of the Constitution of India. 8] Consequently this petition is dismissed. (A.A.Sayed,J.)