1 WP3818/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3818 OF 2011 Dr Sudhir Hanmantrao Deshmukh, Aged 58 years, Occupation Pensioner, Resident of Kallamb, District Osmanabad, At present Resident of Near Chawanda Hospital, Behind Hero Honda Show Room, Barsi Road, Padma Nagar, Latur, Taluka and District Latur Petitioner V E R S U S Pradeep Hanmantrao Deshmukh, Aged 50 years, Occupation Agriculture, Resident of Kasba on Gadhi, Kallamb, Taluka Kallamb, District Osmanabad Respondent Mr. S.D. Hiwrekar, Advocate for the petitioner CORAM : A.V. NIRGUDE, J. DATED : 1st July, 2011 ORAL ORDER : 1. This writ petition is filed against the order dated 21st January, 2011, passed by the Civil Judge, Junior Division, Kallamb, District Osmanabad, in Regular Civil Suit No. 146 of 2006, refusing permission to amend the plaint. 2. The petitioner is the plaintiff, who filed this Regular Civil Suit No. 146 of 2006, on following cause of action. He said, his great grand father, while effecting partition of the ancestral property of the family, set aside few lands and donated them to a Temple by name Datta Deosthan, which is situated at Kallamb. Despite of such donation, the co-parceners received their share in the ancestral property. The great grand father of the plaintiff made a document, in which he mentioned as to who would manage the Deosthan and the lands donated to it. It is stated in the said ancient document that the eldest son of the family should manage the Deosthan and the lands donated to it. Pursuant to this direction, last manager of the Deosthan was the father of the parties to the suit, Hanmantrao. Hanmantrao died in 1998, and, as per the terms of 2 WP3818/11 the document, it is the petitioner / plaintiff who is entitled to carry on the management of the Deosthan. It is said that the respondent / defendant, who is his younger brother is trying to interfere in the management. He, therefore, filed the suit for declaration that he is the manager of the Deosthan and for perpetual injunction restraining him from interfering in the management. 3. After filing of this suit in 2006, the petitioner / plaintiff says that he learnt that in earlier litigation of 1999, the respondent / defendant filed a written statement, in which he admitted that after demise of Hanmantrao, his elder brother, the petitioner, would be the manager of the Deosthan. This fact has not been mentioned in the plaint, because the petitioner was not aware of the contents of such written statement though it was filed way back in 1999. The petitioner therefore sought liberty to amend the plaint for inclusion of this fact which he learnt subsequent to filing of the suit. The learned Judge refused such permission mainly on the ground that filing of the written statement is not a subsequent event. This reason may not be proper. I have my own reason for finding as to why such amendment should be refused. Assuming that the defendant / respondent has made such statement which now seems to be contrary to his stand in the written statement in the suit. This contradiction in his stand can be proved as evidence, and, for proving such fact, there is absolutely no need to plead the same. The petitioner / plaintiff has ample opportunity to bring on record the statement made by the respondent / defendant when the evidence is recorded in the suit. In view of this, the writ petition stands dismissed. ( A.V. NIRGUDE, J. ) SRM/wp/3818/11/1/7/11 3 WP3818/11