1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO.5950 OF 2009 Mrs. Grace Jahoshawa Mackwana. .. Petitioner Vs Mr. Arvind D. Nimbalkar. .. Respondent -- Shri S.N. Chandrachood for the Petitioner. Shri Ashok B. Tajane for the Respondent. -- CORAM : A.S.OKA, J. DATE : 13th January 2010. P.C: . Considering the narrow controversy involved in this Writ Petition filed under Article 227 of the Constitution of India, the same is taken up for final disposal at the admission stage itself. The Resondent is the original Plaintff and the Petitioner is the original Defendant. A suit for eviction has been filed by the Respondent against the Petitioner under the provisions of Maharashtra Rent Control Act, 1999 ( hereinafter referred to as “the said Act” ). A Written Statement was filed by the present Petitioner on 9th June, 2008. An application for amendment to the Written Statement was filed on 11the December, 2008 for the purposes of seeking permission to incorporate two additional paragraphs i.e. 1A and 9A. By the impugned order, the said application has been rejected by the learned trial Judge. 2 2. Learned counsel appearing for the Petitioner submitted that the Petitioner is not disputing the title of the Respondent as her landlord. He submitted that the fact of failure of the Respondent to obtain prior permission of the Competent Authority before execution of the sale deed goes to the root of the matter. He submitted that the Respondent could not produce registered sale deed before the Court on which his title was founded. He submitted that Paragraph 1A is sought to be incorporated for raising contention based on the failure on the part of the Respondent to produce the sale deed. Failure to produce the sale deed goes to show that a prior permission of the Competent Authority before execution of the sale deed was not obtained. He submitted that by Paragraph 9A, the Petitioner wants to object to the maintainability of the suit by contending that since no notification was issued for extending the application to the said Act to the cantonment area, the suit is not maintainable. He submitted that the said contention ought to have been permitted to be raised by way of amendment. The learned Counsel for the Respondent submitted that the trial Court was justified in rejecting the application inasmuch as by the proposed amendment, a totally inconsistent case was sought to be made by the Petitioner. 3. I have considered the submissions. The second part of the amendment is for incorporating paragraph 9A in the Written Statement for contending that in the absence of a notification issued under the said 3 Act extending the provisions of the said Act to the cantonment area, the suit filed by the Respondent is not maintainable. The application for amendment of the Written Statement has been filed within a period of two months from the date on which the Written Statement was filed. This contention which was sought to be raised goes to the root of the matter and, therefore, the trial Court ought to have permitted that part of the amendment. 4. Perusal of the Written Statement filed by the Petitioner shows that the Petitioner is not disputing the fact that the Respondent is her landlord. The learned counsel appearing for the petitioner reiterated before this Court that the Petitioner is not disputing that the Respondent is her landlord. By Paragraph 1A, the Petitioner wants to contend that there is a defect in the sale deed under which the Respondent has acquired the property. The contention sought to be raised is that there was no permission obtained of the Competent Authority before the execution of the sale deed. Section 33 of the said Act covers a suit between a landlord and a tenant relating to possession of the tenanted premises. Admittedly, the Petitioner is not challenging the title of the Respondent as her landlord. Therefore, Paragraph 1A in which certain defects in the title of the Respondent are sought to be pointed out is totally irrelevant for the controversy involved in the suit and, therefore, the trial Court was right in rejecting that part of the amendment. The Court under Section 33 of the said Act cannot decide 4 the issue of title of the landlord. 5. Hence, I pass the following order. (a) The impugned order dated 20th January, 2009 is quashed and set aside. (b) The Application below Exhibit – 39 is partly allowed to the extent to which a prayer has been made for incorporating Paragraph 9A in the Written Statement. ( c) Prayer for permission to incorporate Paragraph 1A stands rejected. (d) All contentions of the parties on merits are expressly kept open. (e) Amendment to be carried out within a period of two weeks from the date on which the writ of this order is received by the trial Court. (A.S.OKA,J)