1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1593 OF 2010 (Manish P. Kirpane & Ors. vs. Dr. Rajesh G. Mundhada) 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. APRIL 30, 2010. Heard finally Shri Khati, learned counsel for the petitioners and Shri Jetha, learned counsel for the respondent. The order dated 15.01.2010 rejecting leave to amend written statement passed by District Judge – 10 in Regular Civil Appeal No. 477 of 2008 is challenged by the petitioners – defendants. In that appeal, the petitioners have challenged the decree of their eviction passed by the Small Causes Court. The petitioners sought amendment with contention that after the judgment and decree of the appellate Court in February 2009, the tenant occupying the premises on first floor, vacated the premises of about 1000 sq. ft. and the same has become available to the respondent – landlord. Because of this event, the contention is the requirement of premises for bonafide need needs to be wiped out. The amendment was opposed by the present respondent, who denied that the person occupying the first floor was his tenant. The appellate Court has 2 rejected the application for amendment after observing that the petitioners – tenants nowhere pleaded that the respondent – landlord was the owner of the first floor. Shri Khati, learned counsel has pointed out that in the proposed amendment, there was specific assertion that the tenant occupying the first floor was the tenant of the respondent – landlord and after that tenant vacated the premises, those premises have become available to the respondent. Shri Jetha, learned counsel for the respondent – landlord, on the other hand, states that as per Will executed by the father of the respondent, the ground floor portion has fallen to the share of the respondent and first floor belongs to his brother. The tenant was occupying the portion belonging to his brother and, therefore, first floor has not become available to the respondent – landlord. The application of mind by District Judge – 10, Nagpur, in this respect shows some lacunae. The observation that there is no assertion by the petitioners – tenants is incorrect and in any case merits of controversy should not be gone into at that stage. However, in view of the specific contention by the respondent – landlord that the tenant of first floor was not his tenant, it was necessary for the appellate Court to find out the relevance of said event and for that purpose a finding on the strength of Will deed on record was necessary. There is no such finding. 3 As I find that the impugned order dated 15.01.2010 shows non application of mind to certain vital aspects, without observing anything more and leaving the entire controversy open, that order is quashed and set aside. The application at Exh. 15 is restored back to the file of the appellate Court. The parties are at liberty to place additional documents/ pleadings on record. The lower appellate Court shall thereafter consider said application at Exh. 15 afresh and decide it as early as possible and in any case by 15th July 2010. Writ Petition is allowed. Rule accordingly. However, there shall be no order as to costs. JUDGE *GS.