1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO.4406/2008 Ramrao Maruti Minde and others. ..Petitioners -VERSUS- Smt.Tarabai Sambhaji Jadhav and others. ..Respondents ......... Mr.P.S.Dani, Advocate for the Petitioners. Mr.A.B.Avhad, Advocate for the Respondents Nos.4 to 6. .......... CORAM : S.C.DHARMADHIKARI, J. DATED : 17th APRIL, 2009. P.C. : 1. Rule. Returnable forthwith. By consent taken up for hearing at this stage itself. 2. Heard Shri Dani, appearing for the Petitioners and Shri Avhad, appearing for the Respondents Nos.4 to 6. Office note shows that the Respondents Nos.1 to 3 and 4 to 8 are duly served. The contesting Respondent is one Tarabai Sambhaji Jadhav through her power of attorney. She is the original Plaintiff and the Respondent No.1 to this Writ Petition. She is absent though served. 3. The Writ Petition is filed by the original Defendants Nos.1 2 to 4 to challenge an order refusing amendment to their Written Statement filed in the suit instituted by Tarabai. She filed Regular Civil Suit No.255/2006 praying for declaration that she has 1/6th share in the suit properties and that the Court should order partition of the suit properties by metes and bounds. 4. Upon summons being served, the Written Statement has been filed by the Petitioners. 5. Subsequently, by an application made in the Trial Court on 13.08.2007 the Petitioners prayed for amendment to the Written Statement filed by them on 12.03.2007. The amendment sought was that one of the properties bearing Gat No.50 is also self acquired property and not joint family property as alleged. That was on the basis that the Defendants noticed that the sale deed dated 06.07.1939 covered this property and it was not disposed of by the joint family but by the vendor in the said sale deed as his exclusive property. Plaintiff- Tarabai objected to this amendment by filing a reply. The Trial Court heard both sides and rejected the application for amendment and that is how this Writ Petition. 6. Mr.Dani appearing for the Petitioners has taken me through the unamended Written Statement and denial therein which set out specific case of the Petitioners that the suit properties are not joint family properties. Thereafter, elaboration of the properties, which are termed as self acquired and joint family properties, is set out in further paragraphs. As far as Gat No.50 is concerned, it is stated to be 3 a property belonging to deceased Dajiba and therefore, could be termed as ancestral property. That is the contention raised in paragraph No.8 of the Written Statement. However, what the Petitioners point out is that now they have come to know that Gat No.50 is purchased by the sons of Dajiba from their independent income. They have purchased it from one Maruti Dajiba Minde by the sale deed dated 06.07.1939, therefore, appropriate clarification and insertions in the Written Statement were necessary. 7. The Trial Court does not dispute the fact that the amendment application was maintainable but dismisses the same on the ground that there is admission in the Written Statement which dis- entitled the Petitioners from applying for amendment. 8. Mr.Dani submits that if the Written Statement is perused as whole, then, the Trial Court could not have reached the conclusion about any admission in the Written Statement. That apart, he places reliance on the decision of the Hon'ble Supreme Court reported in 2007(5) Mh.L.J . 593 (Usha Balasaheb Swami & others vs. Kiran Appasao Swami & others). 9. As noticed, the original Plaintiff Tarabai is absent despite being served. Mr.Avhad, appears for other Defendants and naturally, has nothing to say in regard to the amendment. Now, the Supreme Court has once again reiterated that the Court should be liberal in allowing the amendment of the Written Statement. Prejudice would be far less by addition of a new ground of defence or substituting or 4 altering the defence already taken or taking inconsistent pleas in the Written Statement. Ultimately, the principle of substituting the cause of action does not have any application to grant of amendment to the Written Statement. 10. Considering these principles and applying them to the instant case, what emerges from the record is that initial case set up was that Gat Nos.50 and 291 alone could be said to be properties belonging to deceased Dajiba and inherited by his sons. Later on, one of Gat numbers bearing Gat No.50 is said to be excluded on the basis of the sale deed and it is urged that the same is also self acquired property and not joint family property. If the principles laid down by the Supreme Court are to be applied, then, at the most the plea could be said to be inconsistent but by no stretch of imagination it can be said that it amounted to withdrawal of admission. If the earlier part of the Written Statement was perused by the Trial Court, then, it is apparent that there is clear denial of the status and that the properties are joint family properties. Thereafter, an exception is carved out from the general denial with regard to two properties. Subsequently, another plea is raised and it is stated that Gat No.50 is also not joint family property. In these peculiar circumstances, the amendment should have been allowed by applying liberal principles. The Trial Court could have clarified the matter by observing that this amendment being granted does not mean that appropriate issues cannot be framed shifting burden on the parties. The Trial Court could 5 have also clarified that merely because the amendment is granted does not mean that the Plaintiffs are disentitled from proving that the properties are joint family properties. Equally, if the Defendants dispute this position they can be called upon to prove otherwise. 11. In my view, the order of the Trial Court disallowing the amendment is patently unsustainable and it is vitiated by an error apparent on the face of record inasmuch as the Trial Court refused to abide by the settled principles applicable for granting amendment to the Written Statement. For these reasons, the order under challenge is set aside. The application for amendment made by the Petitioners on 13.08.2007 stands allowed in terms thereof. The amendment be carried out within a period of two weeks from the date of receipt of the copy of this order. However, the amendment is granted subject to clarifications set out above and it does not prohibit the Plaintiff from proving her case and for the Court below in trying it in accordance with law. 12. The petition is allowed in the above terms. Rule is made absolute accordingly. JUDGE