1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4764 of 2008 Sanchin Sitaram Veer & Anr. .. Petitioners versus Aruna Sadanand & ors. .. Respondents ... Mr. K.A. Chotani for the petitioners. Ms.Deepa Sawant for respondent no.1. CORAM : A.M.KHANWILKAR, J DATED : 12th August 2008 P.C.: 1. Heard counsel for the parties. 2. In so far as concurrent finding of fact recorded by the two courts below to the effect that room no.4 and room no.7 are not different premises but that description is ascribed to the suit premises in respect of which decree has been passed, 2 that finding of fact will have to be upheld as it is neither perverse nor shown to be manifestly wrong. The other finding of fact relevant for our purpose is that the respondent no.1 had right in respect of the suit premises for which reason he is entitled for restitution of the suit premises. 3. The only argument to get over this position canvassed by the learned counsel for the petitioner is that the appellate court has committed manifest error in deciding the appeal without considering the merits of the application for amendment of appeal taken out by the petitioner. According to the petitioner, no order has been passed on the said application which is at page 120. Assuming that there is some substance in this grievance of the petitioner, the facts sought to be brought on record by way of proposed amendment in terms of the schedule at page 124 ought to have been pleaded by the petitioner in the original pleadings filed before the trial court. Amending appeal memo is no option unless the pleadings itself were to be amended and proof adduced to support that position. In any case, even if the said facts were to be taken into account, I fail to understand as to how those facts can be of any avail to the petitioner. In that, the facts in the proposed amendment are that 3 there is record to indicate that the respondent no.1 took forcible possession of the suit premises from one Dattatraya B. Khollam and his wife registered a complaint with the local police station in that behalf. It is further stated that the respondent no.1 thereafter inducted one Rajaram Babar in the suit premises being room no.4. Those facts according to the petitioner presupposes that the respondent no.1 was already in possession of suit premises through Rajaram Babar and could not have claimed possession in respect of the premises occupied by the petitioners which is described as room no.7. Once again, even if the said amendment were to be granted, it would be of no avail to the petitioner. For the simple reason that the concurrent finding recorded by the two courts below is that premises described either as room no.4 or room no.7 are not different but one and the same premises. If that finding of fact is unquestionable as has been noted earlier, the proposed amendment will be of no avail to the petitioners. 4. Taking an overall view of the matter, no interference is warranted in exercise of writ jurisdiction under Article 227 of the Constitution of India. Hence, petition is dismissed. 4 5. At this stage, counsel for the petitioner submits that the petitioner would like to take up the matter in appeal for which reason order of status quo be continued for some time. Although his request is opposed by the respondent no.1 in particular, in the interest of justice, it is ordered that status quo with regard to the suit premises be maintained by the parties for a period of three weeks from today subject to undertaking to be filed by the petitioner in this court on or before 21st August 2008 that the petitioner shall not induct any other third party or create third party interest in the disputed premises. (A.M.KHANWILKAR, J)