1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2068 OF 2009 Ajit Nandlal Tatiya........ Petitioner versus Anil Phoolchand Bhandari & ors........Respondent. Ms. Jai Kanade adv. for the Petitioner Mr. Sachin Kudale for the Respondent no.1. Mr. Anurag Jain for Respondents 2 and 3. CORAM: A. P DESHPANDE, J. DATED : 10th November, 2009. P. C.: 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. The present petitioner is the original defendant no.1 whereas the respondent no.1 is the original plaintiff and the respondent nos. 2 and 3 are the original defendant nos. 2 and 3. The parties to the petition are referred to by their status in the suit. 3. The plaintiff instituted a suit for specific performance of an agreement executed by the defendant no.1 in favour of the Plaintiff on 4-8-1989. The plaintiff is also seeking relief in the nature of quashing and setting aside sale deed allegedly executed by the defendant no.1 in favour of defendant nos. 2 and 3 on 20-11-1994. According to the Plaintiff, though the plaintiff was 2 ready and willing to perform his part of contract under the agreement dated 4-8-1989, the defendant no.1 acting through defendant no.2 as a power of attorney holder caused execution of sale deed of the same property in favour of defendant no.3. It is the case of the defendant no.1 that by playing fraud on defendant no.1, sale deed of the suit property had been executed by a collusive act on the part of defendant nos. 2 and 3. Thus the stand of the defendant no.1 in his written statement is crystal clear wherein the defendant no.1 has denied the execution of the sale deed, acting through defendant no.2 in favour of defendant no.3 under registered sale deed dated 28-11-1994. Strangely enough when the trial court called upon the advocate to admit and/or deny the documents on record, the advocate for the petitioner/defendant no.1 erroneously admitted the document viz. the registered sale deed dated 28-11-1994 purporting to transfer the suit property in favour of defendant no.3. The document came to be admitted on 12-8-2008 and immediately on the next date the advocate for defendant no.1, realising the mistake, filed an application under his own signature stating therein that inadvertently the sale deed dated 28-11-1994 came to be admitted by the advocate for the defendant no.1. It is also stated in the said application that even the contents of the written statement if perused, the same goes to reveal that the defendant no.1 has no where admitted the sale deed dated 28-11-1994. Hence a prayer was made to permit retraction from the admission in relation to the sale deed referred to herein above. The said 3 application was opposed by the plaintiff and defendant nos. 2 and 3. The trial court after hearing the parties has rejected the application prompting the petitioner to file this petition calling in question the legality and validity of the impugned order. 4. The learned counsel for the petitioner has submitted that the admission of the document is obviously inadvertent which goes to nullify the averments and pleadings in the written statement touching the sale deed dated 28-11-1994 and a categorical plea of fraud in so far as the execution of th sale deed is concerned. It is then pointed out that no prejudice whatsoever would caused to the plaintiff for the reasons that the plaintiff has already filed on record a certified copy of the sale deed dated 28-11-1994. It is then pointed out that the cross examination of the plaintiff has not commenced and the document in question viz. the sale deed can be proved in accordance with the law by the plaintiff. Thus in substance the submission is that no prejudice will be caused to the plaintiff in the matter of proof of the documents, and hence the court should permit the defendant no.1/petitioner to withdraw the admission made by the counsel, more so when the application for withdrawal of the inadvertent admission is under the signature of the advocate himself. It is submitted, and rightly so, that if the petitioner/defendant no.1 is not permitted to retract, from the admission, the entire defence of the defendant no.1 which raises a challenge to the execution of the sale deed dated 28-11-1994, would stand frustrated and thus the petitioner would be put to suffer irreparable loss besides causing utmost 4 hardship and inconvenience. The thrust of the submission is that unless the petition is allowed, great injustice would be meted out to the petitioner. The learned counsel for the defendant nos.2 and 3 have opposed the petition. 5. Perused the relevant documents and the impugned order passed by the court below. Having regard to the fact that as yet no witness has been examined coupled with the fact that the certified copy of the sale deed dated 28-11-1994 is placed on record, I am of the view that it would be in furtherence of cause of justice to permit the petitioner/defendant no.1 to withdraw the admission, more so when no prejudice is to be caused to any of the parties, I have no doubt that the admission of the document by the advocate was erroneous and inadvertent. It is a settled position of law that the parties should not be made to suffer on account of mistake of an advocate. Having regard to the totality of the facts and circumstances, in my view ends of justice would be met by allowing the present petition and by quashing the impugned order. However as other parties are made to litigate before this court on account of inadvertence on the part of the advocate of the petitioner/defendant no.1 it would be appropriate to direct the petitioner to bear the costs of other parties. 6. In the result the writ petition is allowed. The impugned order dated 27-11-2008 passed by the trial court is quashed and set aside. The application moved by the petitioner seeking retraction of the admission is allowed, however, subject to payment of costs of Rs. 3000/- to each of the respondents 1 to 3. 5 7. Having regard to the totality of the facts and circumstances and as the suit is of the year 1996, I deem it appropriate to direct the trial court to expedite the suit and to make an endeavour to dispose of the same, within a period of six months from today. 8. Rule made absolute in the above terms. The petitioner to deposit the costs before the trial court within a period of four weeks from today. (A. P. Deshpande, J.)