1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.916 OF 2009 Mahadeo S/o.Asraji Andhale and others PETITIONERS VERSUS Chandraprabha Arvind Bade and others RESPONDENTS Mr.Yuvraj Kakade, advocate for petitioner. Mr.H.V.Dhage, advocate for respondent no.1 Mr.S.V.Natu, advocate for respondent no.2 to 5 (CORAM : A.V.POTDAR, J.) DATE : 18/06/2009 PER COURT : 1. By the present writ petition under Article 226, 227 of The Constitution of India, the petitioners who are original defendant no.1 to 4 in RCS No.52/2000 before Civil Judge, J.D.Shevgaon, have challenged the order passed below Exh.106, dated 19/11/2008. Considering the exceptional situation, which gave rise to file the present writ petition require to be considered. In this case, respondent no.1 has filed suit for partition and possession against the petitioners and respondent no.2 to 5. It was not a suit simplicitor for partition, but it is the suit for partition, declaration and possession. It appears that in the said suit, defendant no.5 to 8 who 2 are the present respondents have filed their written statement at Exh. 19. But, the defendant no.1 to 4 who are the present petitioners have not filed their written statement. It appears that inadvertently they have filed their affidavit of examination in chief and thereafter they were cross-examined on behalf of the plaintiff. It appears that thereafter defendant no.5 to 8 who are respondent no.2 to 5 in the present writ petition, filed an application at Exh.106 that even though the evidence of these witnesses is recorded, this evidence be not read as a evidence. After hearing all the parties to the suit, the Learned Judge pleased to pass an order to allow the application dated.19/11/2008. 2. Code of Civil Procedure is very clear on the point that the parties to the proceeding have to file their pleadings. It is settled position of Law that the parties are not permitted to lead the evidence on the facts which they have not pleaded in their respective pleadings. In the present case, there are no pleadings of the petitioners, then when the facts are not pleaded, evidence is not allowed and in absence of any facts pleaded, can the party be allowed to lead the evidence. In the judgment reported in AIR 1991 Bombay 164, in the matter of Smt.Alka Bhaskar Bakre versus Bhaskar Satchidanand Bakre, it is observed (by justice Ashok Agarwal, as he then was) that in case during the proceeding if the evidence is recorded on the facts which are not pleaded and this fact is brought to the notice of the Court at the time of final arguments, then even in such cases, the evidence recorded of the facts which are not pleaded 3 to be ignored and not read in the evidence. When the settled position of Law is so clear, I do not find any fault in the order passed by the Trial Court below Exh.106 by allowing the application of respondent no.2 to 5 not to read the evidence lead on behalf of petitioners in absence of they have filed any written statement in the proceeding. In the premise, the writ petition is devoid of any merit and to be dismissed in limine with no order as to costs. (A.V.POTDAR, J.) khs/wp916-09