1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3042 OF 2008 Avinash S. Rangnekar ...Petitioner vs. Subrav L. Shanbag & Ors. ...Respondents Ms Radhika Samant i/b D.M.Shah for the petitioner Mr.V.K.Damle for respondent no.1(B) CORAM :A.S.OKA,J. DATE : SEPTEMBER 7, 2009 P.C. 1 Heard the learned counsel for the petitioner. The challenge in this writ petition is to an order passed by the Appeal Bench of the Court of Small Causes by which an application made by the petitioner seeking permission to amend the memorandum of appeal for adding grounds has been rejected. Considering the narrow controversy involved in this petition, I have taken up the petition for final disposal. 2 The petitioner has preferred an appeal for challenging the decree for possession passed in favour of the contesting respondents. An application was made by the petitioner for carrying out the amendment to the memorandum of appeal for the purpose of adding grounds of challenge. The said application has been rejected only on the ground that the application for amendment of the 2 memorandum of appeal was not maintainable. The opposition of the learned counsel for the contesting respondents is on the ground that by adding grounds the petitioner was seeking to reopen the entire case. 3 I have considered the submissions. Under Rule 2 of Order XLI of the Code of Civil Procedure,1908, it is provided that the appellant shall not, except by the leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. It is further provided that the Appellate Court in deciding the Appeal shall not be confined to the grounds of objections set forth in the memorandum of appeal. Thus, the rule provides that with the leave of the court, the appellant is entitled to urge in support of appeal the grounds of which are not set forth in the memorandum of appeal. In substance all that the petitioner prayed for was for grant of leave in terms of the Rule 2 of Order XLI of the said Code. The additional grounds sought to be urged were annexed in the form of the schedule to the said application. The Appeal Bench of the Court of Small Causes has taken a very hyper- technical and erroneous view of the matter. The Appellate Court is not powerless to permit amendment of the Memorandum of Appeal. Apart from rule 2 of Order XLI of the said Code, the power under section 153 of the said Code can be always exercised by the Appellate Court for 3 granting permission to add or amend the grounds set forth in Memorandum of Appeal. The application ought to have been allowed. 4 Hence, I pass the following order : i)The impugned Judgment and Order dated 3rd April 2008 is quashed and set aside. ii)The application made by the petitioner at Exh.9 is allowed. Amendment shall be carried out within a period of two weeks from the date of production of an authenticated copy of this order before the Appeal Bench. iii)The pending Appeal shall be decided as expeditiously as possible and in any event on or before 30th November 2009. iv)All contentions in the pending appeal are expressly kept open. iv)Writ Petition is disposed of in above terms. v)A copy of this order shall be forwarded to the learned Judges of the Court of Small Causes at Bombay. JUDGE