KBP 4217-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4217 OF 2008 Dr.N.D.Patil ..Petitioner Vs. Sou.Vasanti Suhas Tembe ..Respondent ......... Mr.S.M.Mirajkar, for petitioner. Mr.Surel S. Shah, for respondent. ......... CORAM : A.S.OKA, J.. DATE : 9 th SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the petitioner and learned counsel for the respondent. The petition is taken up for final disposal at the stage of admission. 2] The respondent landlady filed a suit for possession of the suit property on the ground of bona fide requirement. The suit was contested by the petitioner. The suit came to be decreed. The present petitioner filed an appeal before the District Court. On 2 nd March, 2007, an application was made by the petitioner for amendment of written statement. The said application was rejected by the appellate court. The petitioner filed a writ petition in this court challenging the KBP 4217-08.sxw 2 said order. The writ petition was rejected. While rejecting the writ petition, this Court observed that in the application for amendment, no particulars were set out by the petitioner as regards the flat allegedly acquired by the respondent landlady. This Court observed that the name of the building, number of flat etc. have not been set out in the application for amendment. Though this court did not interfere with the impugned order, while rejecting the petition, this court observed that if permissible in law the petitioner may move a fresh application before the District Court containing necessary details. Accordingly, an application was filed at exhibit 57 by the petitioner. The amendment sought was for incorporating a contention in the written statement that after the suit was decreed the respondent has sold her share in the property bearing City Survey No.1136/B for consideration of Rs.4,25,000/­ and purchased the flat, the details of which have been set out in the text of the amendment. It is alleged that though the flat is shown to have been purchased in the name of her son­in­law who a is resident of Haryana, entire consideration has been paid by the respondent and her husband and the said flat is occupied by the respondent and her husband. The appellate court rejected the said application by the impugned order. The appellate Court observed that the agreement of sale in respect of flat in question does not suggest that the respondent has purchased the said flat for herself as owner. Therefore, the amendment has no bearing on the question of bona fide requirement. KBP 4217-08.sxw 3 3] The learned counsel for the petitioner submitted that in a fresh application filed by the petitioner all particulars of the flat acquired by the respondent such as flat number, name of building, description of the plot on which the building was constructed, area of flat etc. have been set out in the text of the amendment. He submitted that the acquisition has taken place after the decree was passed. He has tendered for the perusal of this court a copy of agreement dated 20 th January, 2005 under which the flat was purchased. He submitted that as the decree passed by the trial court is on the ground of bona fide requirement of respondent, the proposed amendment is certainly necessary for effective adjudication of the dispute involved in the appeal. 4] The learned counsel for the respondent has submitted that, according to the case of the petitioner, the owner of the flat is the son­in­law of respondent and the acquisition is not by the respondent. He, therefore, submitted that for the same reasons for which the earlier writ petition was rejected, the appellate court was justified in rejecting the application for amendment. 5] Learned counsel for the petitioner states that if the amendment is allowed the petitioner will only produce the certified copy of the agreement of sale dated 20 th January, 2005 by way of an additional evidence. He invited my attention to the prayer made in separate application for additional evidence filed on 3 rd March, 2008. KBP 4217-08.sxw 4 6] I have carefully considered the submissions. By the proposed amendment, the petitioner wants to contend that the respondent landlady sold her undivided share in the property specified in the text of the amendment for consideration of Rs.4,05,000/­ and by utilizing the said consideration, flat No.3 in Anant Towers has been acquired by the respondent. It is stated that the super built area of flat is 92.47 sq. metres together with terrace of 5.5. sq. metre. It is stated that though the flat is in the name of respondent son­in­law, the respondent has signed the agreement for sale as constituted attorney of her son­ in­law. The Respondent and her husband have allegedly paid entire consideration. Earlier application for amendment was rejected mainly on the ground that the particulars of the flat such as flat number, building etc. were not incorporated in the text of the amendment. While passing the impugned order, the learned District Judge observed that the respondent is not the owner of the flat. By the proposed amendment the petitioner wants to contend that the respondent landlady by selling her immovable property has acquired the flat in the name of her son­in­law. While deciding the application for amendment the Court cannot go into the merits of the text of amendment. Going by the text of amendment what is sought to be pleaded is certainly relevant in asmuch as the decree passed in favour of respondent is on the ground of bona fide requirement of the respondent. By the proposed amendment, the petitioner wants to state that the new flat was acquired by the respondent and her husband. The KBP 4217-08.sxw 5 alleged acquisition took place in 2005 i.e. during the pendency of appeal and first application was made by the petitioner for bringing this fact on record on 2 nd March, 2007. 7] In the circumstances the impugned order deserves to be quashed and set aside and the petition deserves to be allowed. The petitioner deserves to be permitted to produce on record the certified copy of the agreement of sale dated 20 th January, 2005 referred to above. It is made clear that the appellate court will not remand the mater further to the trial court on the ground that the amendment has been allowed. Hence, I pass the following order:­ (a) The impugned order dated 8 th April, 2008 is quashed and set aside. The application made by the petitioner in the plaint is allowed subject to petitioner paying costs of Rs.5,000/­ to the respondent. The amount of costs shall be paid or shall be deposited in the District Court within eight weeks from today. The payment of costs will be a condition precedent (b) The petitioner is permitted to produce the certified copy of the agreement for sale dated 20 th January, 2005 by way of additional evidence. (c) Subject to what is observed above, the appellate court will proceed to decide the appeal as expeditiously as possible and in any event on or before 31 st March, 2010. (d) It is obvious that if the respondent wants to lead any further evidence for dealing with the amendment, the KBP 4217-08.sxw 6 appellate court shall permit the same. (e) All contentions of the parties in the pending appeal are expressly kept open. (f) The Writ Petition is allowed in the above terms. ( A.S.OKA, J. )