ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5206 OF 2008 PETITION NO. 5206 OF 2008 PETITION NO. 5206 OF 2008 Parshuram Gorakshanath Shelke. ...Petitioner Vs. Dnyanoba Krishna Ghaitale & Ors. ...Respondents. Mr.S.V.Sadavarte for the Petitioner. Mr.Vijay Killedar i/by Mr.Nitin Jamdar for Respondent Nos. 1 to 8. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 21st November, 2008. : 21st November, 2008. : 21st November, 2008. P.C. P.C. P.C. . The Petitioner has challenged the impugned order whereby Defendant Nos. 1 to 4’s amendment application to the written Statement, is allowed. Admittedly, as observed by the Trial Court itself, there was admission regarding the sale-deed in question by filing common written statement singed by Defendant Nos.1 to 4 and 5. Defendant No.5 is a purchaser of the property from Defendant Nos.1 to 4. The Plaintiffs has challenged the said sale-deed. There is no dispute that they have filed common Written Statement signed by Defendant Nos.1 to 5 however, subsequently realizing so called misrepresentation, they moved one application and by order dated 31st January, 2008 the Court has rejected the Application ( 2 ) by saying that appropriate provisions should be invoked i.e. Order 6, Rule 17 of the Code of Civil Procedure (for short, "CPC") for amendment of the plaint/ Written Statement. In the event, the Defendants feel that the Written Statement is not proper and needs to be corrected. 2. The Original Defendant Nos. 1 to 4, therefore, preferred this application for amendment. The learned counsel appearing for the Petitioner contend that having once given admission at the relevant time in the Written Statement, though it is duly signed by the parties, it is impermissible to allow to withdraw the admission which according to me and even otherwise goes to the root of the matter. The circumstances in the present case, just cannot be overlooked merely on this ground. But if, there is a case of misrepresentation detected or came to the knowledge of the parties, it is desirable that such parties should file such pleadings or bring to the notice of the Court as early as possible. In the present case, issues are not framed. The issue of misrepresentation or fraud always needs detailed pleadings and inquiry apart from the evidence. Therefore, in my view, by keeping all points open and in the interest of justice ( 3 ) to give full opportunity to both the parties, it is desirable that the amendment so granted by the Court needs to be retained. The observations in para 6 which is reproduced as under. "6. In the present application, certain allegations are made against the defendant No.5 and the Advocate Mr.Kothawale. It is contended that true facts were not explained to the defendants Nos. 1 to 4 and their signatures were obtained on the WS. Mr.Kothawale Advocate submitted that the defendant No.1 has verified the WS at the foot of the same and also filed supporting affidavit at Exh.17. Thus, there is no question of misrepresentation of facts upon the defendants Nos. 1 to 4. Whether the defendants Nos. 1 to 4 were misrepresented or coerced to sign the WS is a question of fact which needs investigation. Merely on the contention of the parties, the same cannot be decided at this stage. In the event the defendants Nos. 1 to 4 were misrepresented by the defendant No.5 and they were not allowed to plead the facts as ( 4 ) per their choice, it will amount to injustice upon them. On the other hand, in the event the WS Exh.15 was filed as per the instructions of the defendants Nos. 1 to 4, it will amount to withdrawal of the admissions given in the WS, which is not permitted by law. Under these circumstances, it appears just and proper to pass the following order." . In this background, it goes to the root of the matter from either side or from all points. 3. Therefore, keeping all points open for both the parties, as already observed, I am inclined to interfere with the same. The order is accordingly modified. The amendment application as filed by Defendant Nos. 1 to 4, is allowed. 4. The learned counsel appearing for the Petitioner, prayed to stay the effect and operation of the Judgment. In the present facts and circumstances, I am not inclined to grant such prayer. 5. The Writ Petition is disposed of, accordingly. ( 5 ) . No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)