1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No.78/2010 In Writ Petition No.185/2010 (D) [Suresh Gajananrao Raipurkar .vrs. Sharad Ramesh Kedia and others] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. Madhav D. Lakhey, Advocate for appellant, Mr. R.G. Agrawal, Advocate for respondents. .......... CORAM : S.A. BOBDE AND P.D. KODE, JJ. DATE : APRIL 05, 2010. Heard. This is an appeal against the order of learned Single Judge refusing to entertain the petition. The appellant filed the writ petition against the order of first appellate court rejecting his application for amendment of the written statement. The appellant is a defendant against whom the respondent–landlord filed a suit for eviction under Section 16(1)(G)(N) of the Maharashtra Rent Control Act, 1999. In earlier round, the appellant succeeded on the question of comparative hardship. 2 The appellant successfully resisted a decree on the ground of comparative hardship. The landlord approached this court by way of writ petition which was dismissed and in Letters Patent Appeal, the Division Bench remanded the matter back to the first appellate court for deciding the question of comparative hardship afresh and to give an opportunity to point out pleadings and evidence to the said court so that a fresh decision can be taken in the matter. After remand, the application for amendment of written statement, which is in question, was moved by appellant alleging that the landlord has obtained possession of some premises during the pendency of writ petition and, therefore, the amendment may be allowed. The learned appellate court came to the conclusion that the amendment application is clearly an after thought. However, the appellant made an application for amendment of the written statement on the ground that landlord has obtained possession of additional premises during the pendency of writ petition and, therefore, the amendment may be allowed. The learned first appellate court rejected the application for amendment taking a 3 view that alleged subsequent events were not brought to the notice of the first appellate court or this court during the first round. Even though it was alleged that some premises were not vacated by the landlord during the pendency of the suit. The appellant did not satisfactorily answer why the application for amendment was delayed. However, while rejecting the amendment application, the appellate court observed that even if the plaintiff is taken to have got additional space vacated, the requirement of plaintiff for a space of 5000 sq.ft. cannot be fulfilled. The learned Single Judge rejected the said application of the appellant. Mr. Agrawal, learned counsel for the respondents, submitted that this appeal itself is not tenable since it is not filed against the judgment within the meaning of Clause 15 of the Letters Patent. According to the learned counsel for the respondents, the only challenge in the writ petition which is filed under Articles 226 and 227 of the Constitution of India was to the refusal of the amendment application and, therefore, order rejecting amendment application cannot be said to be a judgment. 4 The learned counsel for the appellant however rightly relied on the observations of the Supreme Court in Shah Babulal Khimji .vrs. Jayaben D. Kania and another, reported in AIR 1981 SC 1786 wherein the Supreme Court observed in paragraph nos.106 and 107 as follows : “Thus, the only point which emerges from this decision is that whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent. The last case of this Court to which our attention has been drawn is Shanti Kumar R. Canji .v. Home Insurance Co. of New York, (1975) 1 SCR 550 : (AIR 1974 SC 1719) where the court was considering the effect of an order passed by the trial Judge allowing amendment of the plaint and the question at issue was whether such an order would be a judgment within the meaning of the Letters Patent. The following observations were made by this Court in the aforesaid case (at p.1722 of AIR) : “We are in agreement with the views expressed by the High Court at Calcutta in the M.B. Sirkar’s case (AIR 1956 C 630) as to when an order on an application for amendment can become a judgment within the meaning of clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in 5 the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the questions between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial court is concerned. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right of liability.” We find that though normally the rejection of application for amendment would not determine the right or controversy in a suit, the rejection of application for amendment of written statement in a suit for eviction before us is a matter which affects the merits of the action 6 between the parties by determining some right or liability. The application for amendment, if allowed, would have affected the decision of the court on merits, particularly, since the learned Judge while rejecting the application for amendment observed that even if subsequent events are brought on record, the plaintiff’s bona-fide need for 5000 sq. ft. cannot be fulfilled. In our view, this observations affects the merits of the case. We, however, observe that there is no warrant for the first appellate court for observing that the plaintiff’s need of 5000 sq.ft. cannot be fulfilled even if amendment was allowed since the first appellate court had decided to reject the amendment. We are, therefore, of the view that the judgment in appeal is a judgment within the meaning of Clause 15 of the Letters Patent and, therefore, this appeal is tenable. We, however, find that the appeal has no merits. According to appellant/defendant the landlord/respondent got some premises vacated during the pendency of the suit which was decided in the year 2004. Thereafter, it is undisputed that appeal was filed and the writ petition and letters patent appeal are pending against 7 the impugned order for a period of almost five years, it is surprising that in spite of the alleged facts which are alleged to have came into existence during the pendency of the suit, no attempt was made to bring the said alleged facts to the notice of the appellate court or this court for a long period. It is obvious that it is only after the remand, this amendment application has been moved with a view to protract the litigation. It is not disputed that the appellant has not made any attempt to point out when he came to the knowledge of subsequent events. In the circumstances, we are of the view that the application for amendment is not made bona-fide and has been rightly rejected by the first appellate court. We are also of the view that in the circumstances, the writ petition was rightly rejected by the learned Single Judge. Hence, LPA is dismissed. JUDGE JUDGE Gulande