F.M. Reis, J. - Heard Shri J.P. Mulgaonkar, learned counsel appealing for the petitioner and Shri D. Vernekar, learned counsel appealing for the respondent no.1.

2. Rule, Heard forthwith with the consent of the learned counsel.

3. Learned Counsel appealing for respondent No.1 waives service.

4. The above petition challenges an order dated 14.09.2009 passed by the learned Civil Judge Junior Division, at Mapusa, whereby an application for amendment of the written statement filed by the petitioner came to be dismissed.

5. Shri Mulgaonkar, learned counsel appealing for the petitioner has assailed the impugned order essentially on the ground that the learned Judge has dismissed the said application on the ground that the pleadings which are sought to be incorporated are the same as pleaded by the defendant Nos. 1 (a) to 1 (d) in their separate written statements. The learned counsel pointed out that by the proposed amendment, the petitioner desires to clarify her contention in the original written statement by raising an additional ground in defence to the suit filed by the respondents to the effect that the power of attorney was not entitled to dispose of the property surveyed under No. 216/27 of Assagaon Village. The learned Counsel further pointed out that the basis of the suit filed by the respondents is the sale deed which according to the learned Counsel such sale deed has travelled beyond what was contemplated to be sold pursuant thereto. The learned Counsel has taken me through the impugned order and pointed out that the learned Judge has not at all considered the material on record and has erroneously passed the impugned order. The learned Counsel has further pointed out that the trial has not yet started and being a pre-trial amendment the same ought to have been granted. The learned Counsel as such submits that the impugned order deserves to be quashed and set aside.

6. On the other hand. Shri D. Vernekar, learned counsel appearing for respondent No.1 has supported the impugned order. The learned counsel has taken me through para 9 of the written statement and pointed out that the contents of para 5 of the plaint have been admitted. The learned Counsel has further pointed out that by the proposed amendment, the petitioner is seeking to withdraw such admission. The learned Counsel further pointed out that though respondent Nos. 1 (a) to 1 (d) have raised contentions which are sought to be incorporated by the petitioner nevertheless, the question of the petitioner withdrawing such admission would not arise. The learned Counsel further pointed out that the attempt of the petitioner is malafide and as such, the petitioner is not entitled for any leave to amend the written statement. The learned counsel as such submits that the petition be rejected.

7. I have carefully considered the submissions of the learned counsel and I have also gone through the records. The contention of Shri D. Vernekar, learned Counsel appearing for respondent No.1 to the effect that the admission is being withdrawn cannot be accepted as there is no substitution of para 9 of the written statement by the petitioner in the proposed amendment. The allegations made in para 9 of the written statement wherein the contents of para 5 of the plaint have been admitted are not disturbed with the proposed amendment.

8. Be that as it may, the petitioner desires to clarify her contention in the original written statement by the proposed amendment on the basis of the documents on record. Considering that the amendment was sought before the issues were framed. I find that the learned Judge was not justified to pass the impugned order and refuse to grant leave to amend the written statement. Apart from that, it is well settled that the party can raise inconsistent plea in the written statement. In any event, in the facts and circumstances of the case and taking note of the fact that the other defendants namely respondent Nos. 1(a) to 1(d) had already taken similar s