2010(2) ALL MR 821
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

V.A. NAIK, J.

M/S. Mehadia & Sons & Ors.Vs.Hariprasad S/O. Babulalji Mehadia & Ors.

Writ Petition No.1012 of 2009

23rd November, 2009

Petitioner Counsel: Shri. J. M. GANDHI
Respondent Counsel: Shri. B. B. MEHADIA

Civil P.C. (1908), O.6, R.17 - Amendment in pleadings - Suit for eviction - Defendant-tenant sought amendment in his written statement to claim that plaintiff-landlord has purchased a property - Rejection - On ground that allowing amendment would require the parties to tender additional evidence - Validity - Facts show that plaintiff-landlord had clearly admitted alleged purchase - In fact, landlord wanted the Court to consider fact of said purchase while examining issue of bonafide need - In view of said admission, tender of additional evidence would not be required - Impugned rejection, not justified. (Para 5)

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. The petition is heard finally, at the stage of admission as the notice for final disposal was issued to the respondents by an order dated 5.3.2009.

2. By this petition the petitioners impugn the order passed by the first appellate court on 21.10.2008 holding that the application filed by the petitioner for amendment of written statement would be decided at the time of final hearing of the appeal. The petitioners have also challenged the order passed by the appellate court on 16.1.2009, rejecting the applications filed by the petitioner for permission to amend the written statement.

3. The petitioner is the tenant. The suit was filed by the landlord for eviction and possession. It is the case of the tenant that the landlord had purchased the property in Bajaj Nagar during the pendency of the suit and hence a question was posed to the landlord in his cross-examination about the purchase of the same, but he had merely stated in his cross-examination that he had entered into an agreement of sale in respect of the property at Bajaj Nagar. The petitioner entered into the witness box and admitted in his cross-examination that he was not able to give more details of the property at Bajaj Nagar, except that it was situated opposite CIIMS. The suit of the plaintiff was decreed. In an appeal filed by the tenant the tenant moved an application for amendment of the written statement on the ground that he became aware of the details of the property at Bajaj Nagar, during the pendency of the appeal. The first appellate court, by the impugned order dated 21.10.2008 ordered that the application may be decided at the time of final hearing. The petitioner moved an application for a review of this order. First appellate court by the impugned order dated 16.1.2009 rejected the review application and the application for permission to amend the written statement. Both the orders are challenged in the instant petition.

4. Shri. J. M. Gandhi, the learned counsel for the petitioner submitted that the first appellate court was not justified in rejecting the application in the facts and circumstances of the case. The learned counsel for the petitioner submits that it was not possible for the petitioner to get the details of the property purchased by the respondent during the pendency of the suit and hence it was necessary to allow the amendment application, because the landlord had falsely stated in the cross-examination that he had entered into an agreement of sale to purchase the property at Bajaj Nagar, though the property was already purchased by a sale deed dated 26.12.2006. In the facts and circumstances of the case, according to the learned counsel for the petitioner, the amendment application ought to have been allowed.

5. Shri. B. B. Mehadia, the learned counsel for the respondent nos.1 to 3 supported the orders passed by the first appellate authority and submitted that the landlord had clearly admitted in his cross-examination about the purchase of the property at Bajaj Nagar. The learned counsel for the respondent took this court through the reply filed by the respondents to the amendment application. As it is admitted in the reply that the property situated at Bajaj Nagar belongs to the plaintiffs and the same may be considered while considering the bonafide need of the plaintiff, it is submitted on behalf of the respondents that, from the reply it is clear that the landlords are not disputing the purchase of the property in Bajaj Nagar and in fact they wanted the court to consider this aspect of the matter while considering the issue of bonafide need of the landlords. The learned counsel for the respondent no.1 to 3 submitted that the respondent nos.1 to 3 had opposed the amendment application merely because the tenant would have asked for permission to tender fresh evidence on the basis of the amendment application, and that would have protracted the proceedings. The learned counsel submitted that with this apprehension the amendment application was opposed.

5-A. On hearing the learned counsel for the parties and on perusal of the impugned orders, it appears that the first appellate court did not commit any error in passing the first order dated 21.10.2008 as the first appellate authority had merely ordered that the application would be considered at the time of final hearing of the appeal. This order cannot be said to be illegal by any stretch of imagination. The first appellate court was however, not justified in rejecting the amendment application by the impugned order dated 16.1.2009 on the ground that allowing the application would result in permitting the parties to tender additional evidence. In view of the reply filed by the respondents to the amendment application, there was no question of tendering any fresh evidence as the respondent had clearly admitted about the purchase of the property at Bajaj Nagar and in fact they wanted the court to consider about the purchase of the property at Bajaj Nagar, while considering the issue of bonafide need of the landlord. In such circumstances, there was no need of tendering any fresh evidence in the case as desired by the petitioner tenant. The first appellate court was therefore, not justified in rejecting the amendment application, mainly because the matter would be protracted as the parties would be required to tender evidence. In the peculiar facts and circumstances of the case, there was no question of tendering any evidence in the case in view of the clear admission of the respondents about the purchase of the property in Bajaj Nagar in their reply to the amendment application.

6. In the facts and circumstances, of the case, the impugned order passed by the first appellate court on 16.1.2009 is hereby quashed and set aside. The application for amendment of the written statement is allowed. It is however, made clear that there is no question of tendering any fresh oral evidence in the case on the basis of grant of the prayer for amendment of the written statement. The first appellate court is however, directed to decide the appeal as early as possible and positively within a period of six months from the date of this order. Parties undertake to remain present before the first appellate court on 7.12.2009, so that issuance of individual notices to the parties could be dispensed with. Order accordingly. No order as to costs.

Ordered accordingly.