IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1790 of 2010 (M/S) Smt. Zaibun-Nisha and others ..… Petitioners Versus Rafeeq Ahmad and others ..… Respondents Mr. Ishtiaq Ahmad Khan, Advocate for the petitioners. Mr. Siddhartha Sah, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri Ishtiaq Ahmad Khan, the learned counsel for the petitioners and Shri Siddhartha Sah, the learned counsel for the respondents. An application u/S 21 (1) (a) of the U.P. Act No. 13 of 1972 was allowed by the Prescribed Authority, against which, the tenant filed an appeal. During the pendency of the appeal, the tenant came to know that the property in question is a Waqft property and, based on the evidence so collected, filed an application for amendment of his written statement under the provision of Order 6 Rule 17 of the C.P.C. This amendment application was resisted by the landlord/opposite party. The lower appellate court, after considering the matter, rejected the application against which the present writ petition has been filed. Having heard the learned counsel for the parties, this court is of the opinion that no interference is required in the impugned order in this writ jurisdiction. In the first instance, the court is of the opinion that the order is an interlocutory order against which such a writ petition could not be entertained under Article 227 of the Constitution of India. It would be open to the petitioners to question this order after the appeal is decided by raising it as a ground as provided u/S 105 of the C.P.C. before the appropriate forum after a final order is passed in the appeal. Further, the court finds that the affidavit filed by the petitioner bringing on record, the evidence that the property in question is Waqft property has 2 already been taken on record by the lower appellate court. The proceedings u/S 21 (1) (a) of the Act No. 13 of 1972 are required to be decided on affidavits. Consequently, the lower appellate court will consider the affidavit and the impact of the evidence filed by the petitioner while deciding the appeal. The writ petition dismissed with the aforesaid observation. (Tarun Agarwala, J.) Dated 1st December, 2010 Shiv 3