1 wp 621.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 621 OF 2011 1. Shrikant S/o Subhash Dahiwal & anr. .. Petitioners Versus 1. Savitrabai W/o Radhakisan Labade and others .. Respondents Shri B. S. Shinde, Advocate for Petitioners. Shri Y. S. Choudhari, Advocate for the Respondent No. 2. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH JUNE, 2011. PER COURT : . The present respondent Nos. 1 and 2 had instituted a suit for recovery of possession under the provisions of the Bombay Rent Act. The same came to be decreed. One of the grounds for decree was the alternate accommodation of the tenant. During the pendency of the suit the original tenant died and his legal representatives were brought on record and they contested the suit. On decree been passed, the legal representatives of original tenant preferred an appeal. The said appeal was filed in the year 2 wp 621.11 2000. Thereafter, amendment application was moved on 05.03.2009 incorporating the claim that the house i. e. said to be alternate accommodation of the tenant is in fact the stridan of the present respondent No. 1 i. e. the widow of the original tenant. The present appellants are the sons of the original tenant and the respondent No. 1. The said application was rejected. Aggrieved thereby the present petition is filed. 2. Shri Shinde, the learned counsel for the petitioner vehemently submitted that when the proceedings in the suit were going on, the petitioners were minors. After they became major, they acquired the knowledge that the said property which is said to be an alternate accommodation is stridan of their mother. The Court below has wrongly applied proviso to Order VI Rule 17 as the pleadings are prior to 01.07.2002, the proviso to Order VI Rule 17 was not applicable. The learned counsel further contended that, amendment in the written statement has to be more liberally construed than that of the plaint. According to the learned counsel the reasonings given by the lower Appellate Court are improper and not keeping in tune with the law governing the amendment application. 3 wp 621.11 3. The learned counsel for the original plaintiff supported the order passed by the District Court rejecting the amendment application. 4. The suit for eviction is filed in the year 1994. In the year 1995 original tenant died and the suit was prosecuted by the widow of the original tenant and their sons. During the evidence the widow of the original tenant never raised this plea. The suit was decreed in the year 2000. Regular civil appeal was filed against the said judgment by the present appellants, their mother i. e. the widow of the original tenant. In the appeal memo also such a ground was not taken and it is for the first time in the year 2009 the amendment application is moved incorporating the plea that the said house which is said to be an alternate accommodation is stridan of their mother i. e. widow of original tenant. Surprisingly the respondent No. 1 i. e. the mother of the appellant who is also party has not raised this plea. 5. No doubt proviso to Order VI Rule 17 of the C. P. C. was not applicable, still the fact remained that the application is filed at belated stage. The suit is filed in the year 1994. The appellants 4 wp 621.11 are brought on record in the year 1995, still such a plea was not taken during the trial of the suit, nor when the appeal was filed. The explanation given that the appellants were minor cannot be countenanced. The appellant No. 2 has became major, since seven years, moreover the mother of the appellants was prosecuting the suit. 6. The lower Appellate Court has considered all these aspects. The discretion exercised by the lower appellate Court in rejecting the amendment application is reasonable one. No interference is called for in the writ jurisdiction under Article 227 of the Constitution of India. The writ petition as such is dismissed, however, no costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11