1 W.P.No.4856/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.4856 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.H.K.Munde, advocate for the petitioners. CORAM : S.V.GANGAPURWALA,J. Date : 12.07.2011. 1. Heard. 2. The petitioners are original plaintiffs who had filed the suit for partition and separate possession. The defendants had filed the written statement. Thereafter, the defendant No.3 filed an application for amendment. By way of amendment, the defendant No.3 contends that the suit property is owned by defendant No.2. The said application is allowed by the trial Court. Aggrieved thereby, the plaintiffs have filed the present Writ Petition. 3. Mr.H.K.Munde, learned counsel for the 2 W.P.No.4856/11 petitioners strenuously contends that in the original written statement, the defendant No.3 has admitted the fact that the property is an ancestral property and by way of amendment has taken a diagonally opposite plea that the property is owned by the defendant No.2. By such an amendment, the defendant No.3 is withdrawing the admission given by him about the nature of the property. In original written statement, the defendant No.3 also contended that he should be given share in the said property. The learned counsel submits that by way of an amendment, the admission can not be withdrawn. 4. The defendant No.3 has not deleted any para from the original written statement. At the most, the plea sought to be introduced by way of an amendment can be said to be an inconsistent plea. The defendant is entitled to raise any number of alternate and inconsistent pleas. Moreover, it is also a trite law that amendment in the written statement has to be construed more liberally. When no part of the pleadings of the original written statement is being deleted then in 3 W.P.No.4856/11 such circumstances, one can not say that any admission allegedly given is being withdrawn. 5. It is also a settled proposition of law that merits of the amendment can not be considered at the time of deciding the amendment application. The petitioners will have an opportunity to rebut the said averments made by the defendant No.3. 6. In the result, the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.12.07.2011. asp/office/wp4856.11 4 W.P.No.4856/11