1 WP 8809/2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8809 OF 2005 Anmol Dresses through ] Shri Chandulal Motilal Shah, ] Age : 53 years, Occ. : Business, ] ] Petitioners 1. Shri Hitesh Motilal Shah ] (Ori. defendants) Age : 43 years, Occ.: Business, ] Both r/o : 3100, A Ward, ] Mahadwar Road, Kolhapur ] Vs. Shri Rajaram Anant Chipade ] (Now deceased through heirs) ] ] 1. Deepak Rajaram Chipade ] R/o. : Hanumannagar, ] Respondents Union Bank Colony, Plot no.41, ] (Ori. plaintiff) `B Ward 686, Kolhapur. ’ ] ] 2. Praful Rajaram Chipade ] R/o : Pinak Shivalaya Apartment, ] `B Bldg., 5 ’ th Floor, ] Brahmeshwar Baug, `A Ward, ’ ] Kolhapur. ] Mr. G.N Salunkhe, Advocate for petitioners. None for respondents. Coram : SMT.R.P.SONDURBALDOTA, J. Date : 1st October, 2010 JUDGMENT : 1. This petition filed under Article 227, Constitution of India is for quashing of the order dated 20th September 2005 passed by the 3rd 2 WP 8809/2005 Additional District Judge, Kolhapur rejecting two applications filed by the petitioners for amendment of written statement. These applications have been filed during the course of hearing of Regular Civil Appeal No.225 of 2004, arising out of eviction decree passed in Regular Civil Suit No.258 of 2002. 2. The original respondent filed eviction suit against the petitioner for possession of the premises let out to them for carrying on business. The ground on which the eviction was sought, was of personal and bonafide requirement of the original respondent, in which the premises were needed for the business of the second son of the original respondent. On 13th March 2005, the petitioner filed the first application for amendment, by which he wanted to add in the written statement that the family of the respondent has a flourishing business being run from CTS No.295/1, `B Ward, Bhausingji Road and has also ’ purchased the shop adjacent thereto. The respondent is also alleged to be running business of Maruti car spares parts situate at Bagal Chowk, Shahu Mill road. The petitioner wants to contend that both the businesses are being run by the entire family jointly and hence there is no merit in the claim of personal and bona-fide need. The appellate court rejected the application on the ground that in the written statement filed by the petitioner, at paragraph 12, averments 3 WP 8809/2005 are already made in respect of several businesses of the respondents. There is also reference made therein that the petitioner has got property extract in respect of 11 properties of the respondents. The appellate court, therefore opined that there are already sufficient pleadings in the written statement on which it was possible for the petitioner to lead evidence. 3. On 3rd August 2005, the petitioner made second application for amendment to state that on 20th April 2005, petitioner no. 1 suffered heart attack and on 26th April 2005, petitioner no.2 suffered paralytic attack. Since the paralytic attack, the petitioner no.2 is neither able to speak nor walk. Petitioners contend that on account of the sickness, their financial position has become weak and it is not possible for them to acquire premises in the vicinity of the suit premises. Thus averments are sought to be included in the written statement in order to bring on record the hardship suffered by the petitioners by way of 4 subsequent events. The lower appellate court opined that in a suit for possession of shop premises on the ground of bona-fide requirement, the personal ailments of the petitioners is not relevant while considering comparative hardship. In addition, the lower appellate court referred to the Proviso to Order 6, Rule 17 Code of Civil Procedure as added by the amendment after 2002 and observed 4 WP 8809/2005 that in view of the provision, the amendment application cannot be allowed liberally. 4. Mr. Salunkhe, learned counsel for the petitioners relying upon the decision of the Apex Court, in the case of Sumesh Singh vs. Phoolan Devi and others, reported in (2009) 12 Supreme Court Cases 689 submits that the amendments with the proviso added by Code of Civil Procedure by the Amendment Act of 2002 has only a prospective effect and is applicable to the suits filed after the amendment came to be effected i.e. suits filed after 1st July 2002 and it is not applicable to the suits filed prior thereto. According to Mr. Salunkhe, the lower appellate court has rejected the applications for amendment only on the ground of applicability of the amended provision of Order 6, Rule 17 Code of Civil Procedure. This submission on the part of Mr. Salunkhe is not correct. That reason has been given as an additional reason. The lower appellate court has already at paragraphs 4 and 5 of the impugned order expressed its opinion as regards the amendments sought by the petitioners which is correct in the facts of the case. The amendment under the first application was wholly unnecessary as averments relevant thereto were already made in the written statement. Whereas the amendment under the second application is irrelevant as the personal ailments suffered by the 5 WP 8809/2005 petitioners cannot be of relevance in deciding the issue of comparative hardships for recovery of shop premises. In the circumstances, I find no infirmity in the impugned order. Hence, the petition is dismissed. 5. On the application of Mr. Salunkhe, learned counsel for the petitioners, the interim order staying the proceedings in the trial Court is extended by eight weeks. (Smt. R.P. SondurBaldota, J.) (Smt. R.P. SondurBaldota, J.)