ORAL JUDGMENT

Rule. Mr. Shivang P. Jani, learned advocate for respondent No. 1 waives service of notice of rule. Mr. Tushar N.

Vyas, learned advocate for respondent No. 2 waives service of notice of rule.

1. By way of this petition, petitioner – original defendant No. 2, invoking jurisdiction under Article 227 of the Constitution of India, seeks to challenge an order dated 09.01.2012 passed below Exhibit-16 in Regular Civil Suit No. 258/2011 (Old Suit being Regular Civil Suit No. 69 of 2010), whereby an application made to permit him to produce additional written statement as subsequent pleadings to the plaint as also the injunction application, came to be rejected. From the papers annexed with the petition, it appears that respondent No. 1 – plaintiff, filed a suit seeking declaration that family arrangement made between the parties on 29.09.2010 by way of an agreement, is binding to all of them and the defendants have no right or authority to act against the conditions mentioned therein, either by themselves or through their agents, assignees or any other persons, to create charge or sell it off and injuncting them for the same. From the pleadings, it appears that the parties to the suit are brothers and the mother of them, who is also joined as defendant in the suit. As coming out from the papers, there appears other suits filed in between them with regard to the aforesaid agreement of family arrangement and its fallout.

2. It appears that this suit in the present case was also ordered to be clubbed together with the other suits being Special Civil Suit Nos. 45 of 2011, 46 of 2011 and 47 of 2011 for the joint trial of all common issues in dispute.

3. Mr. Udayan P. Vyas, learned advocate for the petitioner submitted that after the service of the summons, vide Exhibit-8 on 06.12.2010, the petitioner - defendant No. 2 filed written statement to the suit as also the injunction application mentioning therein that today i.e. on 06.12.2010, as per the settlement arrived between the parties, they pray for passing a decree in the suit and injunction also, as per the settlement deed which is separately produced vide Exhibit-9 along with their written statement on that very day. However, in the said written statement, it is mentioned that the suit filed by the plaintiff is correct and they admit the claim made therein.

3.1 On such written statement being filed along with the agreement of settlement, it was kept for hearing vide order passed below Exhibit-9 before acting upon the said consent agreement. However, after hearing the parties, considering the agreement between them and the prayer made in the suit, vide order dated 15.01.2011, the concerned Judge refused to act on the consent agreement on the ground that the agreement arrived between the parties claiming independent ownership and possession of the properties described therein is contrary to what is prayed in the plaint and with a view to find out, other heirs of Dr. Prabhudas Patel are there or not, which cannot be concluded in absence of pedigree. Therefore, learned Judge had rejected the same as it cannot be acted upon without recording the evidence, directing the parties to lead the same before the Court.

3.2 On 05.03.2011, petitioner - defendant No. 2 vide pursis Exhibit-15 sought to withdraw the written statement Exhibit-8 as also consent deed Exhibit 9 as signature of the petitioner - defendant No. 2 in those documents were obtained on misrepresentation, practicing fraud, which petitioner - defendant No. 2 could notice, and therefore, he requested that in detail he would produce the written statement to the plaint as also the injunction application. In short, by that pursis Exhibit-15, written statement showing the consent to the plaint as also the consent deed came to be withdrawn by him.

3.3 Thereafter, vide Exhibit-16 application, the petitioner - defendant No. 2 sought permission from the Court to produce additional written statement to the suit as also the injunction a