MSS : 1 : FARAD CONTINUATION SHEET NO. FARAD CONTINUATION SHEET NO. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5541 OF 2005 --------------------------------------------------------- Office notes, office : Memoranda of Coram, : appearances, Court’s : Court’s or Judge’s Orders orders or directions : & Registrar’s orders. : . --------------------------------------------------------- Mr. S. M. Oak for petitioners CORAM: SMT. RANJANA DESAI, J. CORAM: SMT. RANJANA DESAI, J. CORAM: SMT. RANJANA DESAI, J. 8/9/2005 P.C.:- By the impugned order the lower appellate court has rejected application filed by the original defendants for amendment of the written statement during the pendency of the appeal. 2. I have heard the learned counsel for the petitioners, who are original defendants. He contended that by amendment the defendants only want to bring on record geneology and want to contend that Rama Bhilare was their common ancestor, he was having two sons Babu Rama Bhilare and Baji Rama Bhilare and both these brothers were residing separately since long MSS : 2 : time. At the time of disputed transaction they were residing separately. 3. In the plaint the plaintiffs have specifically taken up a contention that the sale deed was executed by defendant 2 and defendant 8 on behalf of the joint family. In the original written statement there is no specific denial of this fact. Now by way of this amendment at the appellate stage the defendants want to change their stand. This is bound to cause prejudice to the plaintiffs. 4. Besides the lower appellate court is right in saying that the decision of the suit mainly turns on the question whether the transaction between the parties is a mortgage or a sale transaction. The proposed amendment is not necessary for adjudicating that issue. The proposed amendment is aimed at procrastinating the litigation. Such a belated amendment cannot be allowed. MSS : 3 : 5. The petition is therefore, rejected.