1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 1623 OF 2009. Aijaz Ahmad Khan -: versus :- Ku. Saminuuiasa Abdul Shakur Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 13, 2010. Heard finally by consent of Shri S.P. Kshirsagar, learned counsel for petitioner and Shri A.M. Ghare, learned counsel for respondent. Petitioner is tenant and Small Causes Court passed decree of eviction against him on the ground of bonafide need of respondent-landlord/landlady. Petitioner has filed Regular Civil Appeal No.96/2006 which is still pending. Landlady expired during its pendency and petitioner moved application under Order 6 Rule 17 seeking leave to amend written statement. The contention was as landlady has expired her need is extinguished and therefore, the decree has become unsustainable. The amendment was opposed by the respondent, who stated that as legal heirs they are entitled to benefits of decree and therefore, the amendment was not relevant. The lower Appellate Court has by the impugned order dated 23.02.2009 passed below Exh.23 rejected the 2 leave to amend after noticing that the legal heirs were entitled to benefits of decree and trial court has correctly appreciated the situation prevailing on the date of institution of the suit. Shri Kshirsagar, learned counsel contends that merits of the amendment cannot be gone into at that stage and as landlady has expired and her need was only pressed into service, even was relevant and what is the significance of that event, is matter of merit. Shri Ghare, learned counsel on the other hand states that as the position prevailing on the date of institution of the suit is required to be considered the order impugned calls for no interference. The facts really show that the need pressed into service was of deceased landlady. She expired after the decree came to be passed in Civil Suit. The proceeding are under Section 16[1][g] of the Maharashtra Rent Control Act, 1999. In this situation it is necessary to even see whether the amendment is having any impact on the merits of the matter. As the issue itself pertains to merits of the controversy, the amendment could not have been rejected. Shri Kshirsagar, learned counsel has stated that if the fact of death of landlady is accepted, remand of the matter to the trial court is not necessary as the appeal on the basis of the material available on record can be itself decided. Shri Ghare, learned counsel states that fact of death of landlady is accepted. In view of the findings reached above, proceedings in appeal are expedited. As possibility of remand is ruled out, the application at Exh.23 is allowed, and 3 petitioner tenant is permitted to carry out appropriate amendment in his written statement and to argue the appeal on its strength. The respondent heirs of landlady are at liberty to file necessary counter if they are so advised. Proceedings in Regular Civil Appeal No. 96/2006 are expedited, and the court below shall attempt to decide the appeal as early as possible and in any case by 30.09.2010. Writ Petition is allowed in the aforesaid terms. Rule accordingly with no order as to costs. JUDGE Rgd.