IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 777 OF 2008 SHRI DATTA PANDURANG MALIK AND 3 ORS., ... Petitioners Versus SHRI PRABHAKAR PURUSHOTTAM MALIK AND 4 ORS., ... Respondents Mr.J.E.Coelho Pereira, Senior Advocate with Mr. Somnath Karpe,Advocate for the petitioners. Mr. D. J. Pangam, Advocate for the respondents. Coram:- C. L. PANGARKAR, J. Date:- 12th February, 2009 P.C. 1. This writ petition has been filed against the order passed by the Civil Judge whereby she disallowed the application for amendment of the written statement filed by the defendant Nos. 1 to 4. 2. The plaintiffs have instituted a suit for declaration and injunction. The plaintiffs seek declaration that the plaintiffs are the owner of the survey No.48 subdivision 1,2,3,4,5 and 6 and survey No.47 subdivision No.1,2,3,4,5,7,8 and 9 of village Kudnem. The defendant Nos. 1 to 4 had filed a written statement and had also filed a counterclaim in the said suit. By the counterclaim, the defendants had sought a declaration that defendants are the owner of the survey No.47/1 to 47/5 and they have 1/4th share therein. The defendants claimed declaration to that effect. 3. Subsequent to the filing of the written statement, the defendant filed an application for amendment and sought to add para No.3 by deleting the original para No.3. Similarly, the defendants also wanted to delete para No. 4 and to add another para No.4 in place of it. Certain words were also sought to be deleted by the defendants. 4. The application was opposed by the plaintiffs. Since the application was opposed, it was disallowed by the learned Judge of the Trial Court. The learned Counsel for the respondents/ plaintiffs, submits that by deleting paragraphs from the written statement, the defendants in fact want to withdraw the admissions given by the defendants in the written statement and such an amendment cannot be allowed. 5. After having gone through the proposed amendments, it is obvious that the defendants certainly intend to withdraw the admissions given by the defendants in the original written statement filed by them. The learned Judge has rightly disallowed that amendment application with regard to withdrawal of the admissions given by the defendants. 6. As far as the addition of the paragraphs is concerned, after having gone through the contents of the application, I find that what the defendants want to add, is only to explain as to how the defendants became the owner of the property. As such the explanation does not amount to changing any defence as such. In any case, the Law is well established that the defendants are allowed to raise inconsistent pleas and even if such inconsistent additional pleas are sought to be raised by the defendant, there is no difficulty in allowing the same. It was contended on behalf of the respondents/plaintiffs further that the defendants want to add a paragraph in the prayer clause by deleting the description of the property by survey numbers saying that the defendants are the owners of the suit property. It was contended that such a prayer after lapse of more than 12 years, cannot be allowed because of the fact that such a relief could be said to be barred by limitation. The learned Counsel for the petitioners submits that even if such a relief could be said to be barred by limitation, such amendment can be allowed. Reliance was placed by him on a decision of Supreme Court in Pankaja and Another Versus Yallappa reported in 2004(6)SCC 415. The Supreme Court has in this decision quoted a decision reported in Raghu Tilak D. John V. S. Rayappan reported in 2001(2) SCC 472 wherein Their Lordships of the Supreme Court have made following observations: "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for." 7. It is clear from the decision of the Supreme Court that even where amendment is barred by limitation, it would still be allowed and such amended pleadings could be the subject matter of issue which can be decided at the time of trial. In view of this, even if the amendment could be said to be barred by limitation, I see no impediment in allowing that portion of the amendment. In view of this, the order passed by the learned Civil Judge, is partly modified. The order rejecting the application as far as the deletion of paragraphs from the original written statement is concerned, is confirmed. Rest of the amendment is allowed and and the petition is accordingly disposed of. The learned Civil Judge shall bear in mind that if at all he feels that the counterclaim is barred by limitation, the Civil Judge may frame such an issue and answer the same while deciding the suit. C. L. PANGARKAR, J. SMA