1997(1) ALL MR 258
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.D. MANE, J.

Shantaram Sonuji Wankhedkar Since Deceased Through His Heirs And Legal Representatives; Vs. Shri Nivrutti Fakira Kabade, Since Deceased Through His Heirs.

Writ Petition No.419 of 1996,Writ Petition No.2346 of 1996

17th June, 1996

Petitioner Counsel: R.B.RAGHUWANSHI

Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.12 - Written statement - Amendment at appellate stage sought by tenant on ground that bona fide need had ceased to exist as landlord died and his daughter for whom premises were needed got married - Those subsequent events can be argued in appeal - Amendment of pleading therefore not necessary.

Civil P.C. (1908), O.6. R.17. (Para 3)

JUDGMENT

MANE, J.- In ejectment suit, one of the grounds pleaded by the landlord was the bona fide requirement of the suit shop premises for himself and for the benefit of his family. the decree was passed but that was challenged in appeal being RCA No.102/1988. The appeal is pending. During the pendency of the said appeal both the landlord and the tenant died. Their legal heirs are already brought on record.

2. The legal heirs of the tenant viz; the appellants filed application exhibit 41 in the appeal in the appeal inter alia pointing out that there are subsequent events and as such prayed for amending their written statement by raising a plea that the suit is liable to be dismissed on the ground that there is non existence of the bona fide requirement on the death of the landlord. The appellate court, however, rejected the application against which this writ petition is filed.

3. I have heard Mr. Raghuvanshi, learned counsel for the petitioners. The subsequent events on the basis of which amendment in written statement is asked for are these. The landlord died and therefore, there is non-existence of the bonafide requirement and secondly, that in plaint it was stated that one of the daughters of the plaintiff landlord was unmarried and perhaps it was therefore suggested that the premises were bona fide required on that ground. Since the daughter is married it is submitted that the landlord's bona fide requirements is affected.

3A. The learned Joint District Judge, however, is of the view that these subsequent events can be argued in appeal even without amendment of the pleadings. I do not find any fault in the approach of the case. There is hardly any merit in the contention that the written statement is required to be amended in the light of the subsequent event. Mr. Raghuvanshi, learned counsel for the petitioner does not dispute that circumstances can be urged in appeal by the petitioners and they are required to be considered on merits of the case by the lower appellate Court.

4. In that view of the matter, Mr. Raghuvanshi, learned counsel for the petitioners, requests that the petitioners be permitted to withdraw the application, exh.41, without prejudice to their rights and contentions to argue these contentions in appeal. I think that rejection of application, exh. 41, will not in any way prejudice the petitioners in relying on these circumstances in appeal in support of their contentions.

5. The result is that I do not find any merit in the writ petition. Mr. Raghuvanshi, learned counsel, however, seeks leave to withdraw the petition. Leave is granted. The writ petition is dismissed as withdrawn. The petitioners are, however, given liberty to agitate the very contentions in the appeal and the lower appellate court is directed to consider the same for his determination of the rights of the parties on merit in appeal in accordance with law.

Petition dismissed as withdrawn.