1 WP-8265.sxw ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8265 OF 2010 Shri. Madhav B. Agarwal. ..Petitioner. Vs. Ashok Mastkar and ors. ..Respondents. Mr. I.S. Yadav, Advocate for the Petitioner. Coram : A.S. OKA , J. Date :25th October, 2010 PC: 1 Heard the learned counsel appearing for the petitioner. The petitioner is the original defendant-tenant in a suit for eviction filed by the respondents. A prayer was made by the petitioner for deleting the 1st and 2nd issues. The said issues read thus: 1 Whether defendant remained in arrears of rent from August, 1997? 2 Whether defendant failed and neglected to pay the rent inspite of demand made in the notice dated 6th August, 1999? By the impugned order, the said prayer has been rejected. 2 The learned counsel appearing for the petitioner invited attention of this Court to the averments made in 2 WP-8265.sxw Paragraph-12 of the plaint and he submitted that no decree can be passed on the ground of arrears of rent. He, therefore, submitted that the aforesaid issues ought to have been deleted. 3 Apart from the fact that the averments made in Paragraph-12 of the plaint cannot be read in isolation, the Paragraph-4 of the plaint makes a reference to demand notice. At the time of hearing of the suit, the petitioner can always argue that the decree for possession cannot be passed on the ground of arrears of rent as there is no cause of action to seek the possession on the ground of arrears of rent. The petitioner can always argue that compliance has been made by the petitioner by depositing the requisite amount with interest. As the said contentions are open, it is not possible to find fault with the order passed by the Court below by which the application for recasting the issues was rejected. Subject to what is observed above, no case for interference is made out. Writ Petition is rejected. JUDGE