1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7533 OF 2008 Suryakant Krishna Dhotre & Ors. .. Petitioners versus Yusuf Karim Shaikh & Ors. .. Respondents Mr.V.S.Talkute for the petitioners. Mr.Ajay A. Joshi for respondent No.1. Smt.P.U.Badadare for respondent No.2. CORAM : A.S.OKA, J. DATE : 11th September 2009. P.C.: . Heard learned counsel appearing for the petitioners, learned counsel appearing for the respondent No.1 and learned counsel appearing for the respondent No.2. The writ petition is taken for final disposal. 2. The petitioners are the original plaintiffs. The suit filed by the petitioners for partition and separate possession was dismissed by the trial Court. An appeal was preferred by the petitioners. During the pendency of the appeal, 2nd respondent (2nd defendant) made an application before the Appellate Court for seeking permission to file written statement. The application made by the 2nd respondent was allowed by the Appellate Court. The Appellate Court by the judgment and order dated 26th September 2001 passed an order of remand. The order of remand was essentially passed as 2 the 2nd respondent/2nd defendant was allowed to file written statement. The operative part of the order of the District Court reads thus: “The suit is remanded to the learned trial Court for fresh decision. The learned trial Court shall take into consideration the W.S. Filed by the respondent no.2 and shall give reasonable opportunities to the parties to amend their pleadings and lead evidence, if they choose to do so. Since the respondent No.2 is an old man of 80 years, the suit be expedited. The parties and their learned counsels are requested not to take unnecessary adjournments and they shall co-operate with the learned Judge, for the early disposal of the suit.” 3. After remand the petitioners amended their plaint under the orders of the Court . The 1st respondent/1st defendant filed additional written statement to the amended plaint. The petitioners filed an affidavit in lieu of examination -in-chief of the 2nd petitioner. An application was made by the 1st respondent at Exhibit 107 contending that the 2nd petitioner has filed a detailed affidavit in lieu of examination-in-chief which is not permissible in view of a limited order of remand. It was submitted that the affidavit of the 2nd petitioner will have to be confined to the amendment carried out to the plaint. It was contended in the application that after the order of remand, the evidence which is recorded prior to order of remand remains on record and parties can lead only further evidence. After a contest, the said application at Exhibit 107 was allowed and the trial Court passed an order directing that the petitioners can lead additional evidence only in respect of the pleading made by the 2nd defendant in his written statement. 3 4. The learned counsel appearing for the petitioner submitted that the learned trial Judge by the impugned order has prevented the petitioners from adducing evidence in terms of the order of remand and the evidence of the petitioners after order of remand cannot be restricted. He submitted that in any event the petitioners will have to lead further evidence on the basis of the amended plaint. The learned counsel appearing for the 1st respondent submitted that the trial Court was justified in passing the impugned order. He invited my attention to the order of remand. He submitted that the petitioners cannot be allowed to lead fresh evidence and in any event they cannot be allowed to prove what is pleaded by the 2nd respondent in his written statement. I have also heard learned counsel appearing for the 2nd respondent. 5. I have carefully considered the submissions. The order of remand was passed by the District Court as the 2nd respondent was permitted to file written statement. In view of the written statement, while passing order of remand, the District Court granted liberty to the parties to apply for amendment of their pleadings and to lead evidence. The liberty granted to lead the evidence is obviously to lead further evidence in addition to the evidence which is already on record. The liberty was granted to lead further evidence as the 2nd defendant was allowed to file written statement and the parties were allowed to amend their pleadings. As a result of order of remand, the evidence which is adduced by the parties before remand continues to be on record and the parties have been permitted to lead 4 further evidence for dealing with the amendments carried out to the pleadings as well as the written statement filed by the 2nd respondent. 6. In the circumstances, though no fault can be found with clauses 2 and 3 of the operative part of the impugned order, the petitioners will have to be permitted to lead further evidence on the basis of the amendment carried out by them to the plaint. This modification deserves to be made. 7. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 17th July 2008 is confirmed subject to modification that the petitioners will be entitled to lead additional evidence on the basis of or in support of the amended portion of the plaint. (b) Petition is disposed of accordingly. (A.S.OKA,J)