Lsp 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 PETITION NO. 8029 of 2008 Krishnaji Dattatray Velankar ...Petitioner V/s. Vidyadhar G. Patwardhan (Deceased) by LRs Jayant K. Patwardhan & ors. ...Respondents Mr. P.S.Dani for the petitioner. Mr. Navin Parekh with Janksare for respondent no.1(E). CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 15TH JANUARY, 2009 : 15TH JANUARY, 2009 : 15TH JANUARY, 2009 P.C. . Heard Counsel for the parties. Going by the position stated by the Lower Court in the end of order dated 5th July, 2008 and also perusing the application exhibit 213 filed by the petitioner before the Lower Court and finding recorded by the Lower Court in its order dated 25th August, 2008 in paragraph 2, the conclusion reached by the Lower Court will have to be accepted. However, Counsel for the Petitioner in all fairness submits that in that case the petitioner be permitted to move the Lower Court to specifically point out as to which portion of additional written-statement of the respondent no. 1(E) is inconsistent with the plea taken by the original defendant so as to efface only that part of the pleadings in the said additional written-statement. Indeed, the petitioner ought to have done that at the first instance. However, since it is 2 well established position that the legal representative after being brought on record is bound by the written-statement filed by his pre-decessor and cannot be allowed to take stand which is inconsistent thereto, it is appropriate and in the interest of justice to allow the petitioner to file fresh application before the Lower Court who in turn shall decide the same on its own merits. All questions in the said application are left open. 2. Needless to observe that only after appropriate order is passed on the said application, the Court may proceed with the framing of additional issues, if required. It is once again made clear that all questions are left open to be considered by the Lower Court on its own merits. Petition is disposed of in the above terms. 3. The petitioner shall present the proposed application within two weeks from today. On presentation of the said application, the Lower Court shall finally dispose of the same as expeditiously as possible and in any case not later than four weeks from the date of presentation. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]