Point in Issue :
Whether written statement filed once in the Court can be permitted to be cancelled or set aside with permission to substitute the same by filing fresh one.

Smt. Abhilasha Kumari, J.—Rule. Mr. Pinakin B. Raval, learned Counsel waives service of notice of rule on behalf of Respondent No. 1. Mr. J.B. Pardiwala, learned Counsel, waives service on behalf of Respondents Nos. 2 and 3. Though served, none appears on behalf of Respondents Nos. 4 and 5.

1.0 By way of this petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 17.07.2008, passed by the trial Court in application at Exhibit-293, in Special Civil Suit No. 26 of 1997 and Special Civil Suit No. 31 of 1998, whereby the said application of the petitioner, for filing a fresh written statement, has been rejected.

2.0 The facts of the present case are somewhat chequered and are being briefly reproduced hereunder.

2.1 The petitioner is the original defendant No. 2 in Special Civil Suit No. 31 of 1998. Respondent No. 1-Trust is the plaintiff therein. The said Suit has been filed with a prayer for declaration and permanent injunction and for a decree of specific performance of contract entered into by the father of the petitioner and Respondent No. 2, and Respondent No. 1, whereby it was agreed to sell land bearing Survey Nos. 204/1, 205/2 to Respondent No. 1, by Agreement to Sell dated 14.01.1973. Respondent No. 2 is the brother of the petitioner and Respondent No. 3 is the wife of Respondent No. 2.

2.2 It is the case of the petitioner that as he is residing at Mumbai, he has conferred a Power of Attorney upon Respondent No. 2, in respect of certain properties, mentioned therein. Respondent No. 2, on the strength of the said Power of Attorney, sold land bearing Revenue Survey Nos. 204/1 and 205/2 to Respondent No. 3, herein, who is his wife. However, Respondent No. 2 has made certain interpolations in the said Power of Attorney and added certain Revenue Survey numbers as such Revenue Survey Nos. 204/1 and 205/2, which were never mentioned in the original Power of Attorney. On the basis of the said Power of Attorney, the Respondent No. 2 filed a joint written-statement on behalf of himself, the petitioner and Respondent No. 3, in Special Civil Suit 31 of 1998, taking the stand that the property comprising the said survey numbers had been sold to Respondent No. 3, by executing a registered Sale Deed and, therefore, cannot be claimed by Respondent No. 1-original plaintiff. The petitioner was not aware about the interpolations made in the said Power of Attorney and according to him, he was not aware of the transfer of the said land by Respondent No. 2, to Respondent No. 3. He came to know regarding the same in the year 2003. Respondent No. 3 also filed Special Civil Suit No. 26 of 1997, for declaration and permanent injunction. The petitioner was not a party to the said Suit and was impleaded after filing an application to be joined as party. Special Civil Suit No. 26 of 1997, and Special Civil Suit No. 31 of 1998, instituted by Respondent No. 3 and Respondent No. 1 respectively, came to be consolidated, somewhere in the year 2002 and it was ordered that evidence be recorded in common. Thereafter, the petitioner filed Special Civil Suit No. 33 of 2003, subsequently renumbered as Regular Civil Suit No. 153 of 2005, praying for the cancellation of the Sale Deed executed by Respondent No. 2, in favour of Respondent No. 3. This Suit came to be decreed on 08.09.2006, against which an appeal has been preferred by respondent Nos. 2 and 3, which is pending.

2.3 In the above background, the petitioner filed an application at Exhibit-293, in Special Civil Suit Nos. 26 of 1997 and 31 of 1998 with a prayer to cancel the written-statement, earlier filed by Respondent No. 2 on his behalf as Power of Attorney, and for permission to file a fresh written-statement. This application has been rejected by passing the impugned order, hence the petition.

3.0 Mr. Zubin F. Bharda, learned Counsel for the petitioner has submitted as follows:

(i) The petitioner and Respondent No. 2 are real brothers and Respondent No.