kbp 1 7846-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7846 OF 2008 Sushilabai Dhairyasingh Kulal and anr. ..Petitioners Vs. Mahadev Hari Mahale (since deceased through his L.Rs.) ..Respondents ......... Mr.P.B.Shah, for petitioners. Mr.Amit Sale, for respondent no.1(b). ......... CORAM : A.S.OKA, J.. DATE : 23 rd SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the petitioners who are the original first and second defendants and the learned counsel appearing for respondent no.1-b. Respondent No.1-a has expired and the respondent no.1-b is one of the legal representative of the respondent no.1-a. Considering the narrow controversy involved, the petition is taken up for final disposal at the stage of admission. 2] A suit was filed by the predecessors of respondent nos.1-a to 1-c against the petitioners and others for possession of the suit property on the ground of sub-letting and bona fide requirement. The petitioners are the tenants. The allegations against the petitioners is that they have sub let the said premises to the third defendant. The suit was decreed by the trial court. The appeal preferred by the petitioners against the said decree is pending. In the appeal, an application for amendment of written statement was made by the petitioners. By the proposed amendment, the petitioners were desirous of contending that the original plaintiffs have not disclosed that they were owners of lands bearing kbp 2 7846-08.sxw city survey nos.409 and 411 admeasuring 149.6 square meters situated at Vadgaon(Bk) and that a house consisting three rooms was constructed on the said property. A reply was filed by the original plaintiffs to the said application contending that the said property was sold by the original plaintiff in the year 1994 i.e. prior to the institution of the suit. It is not in dispute that the contesting respondents produced a copy of sale deed dated 2 nd August, 1994 on the record of the appellate court showing that the original plaintiff sold the said property to a third party. The application for amendment has been rejected by the impugned order by holding that the property has been already sold and that sub-letting is also a ground for eviction. After having heard the learned counsel for the parties, I find that the approach of the learned District Judge is completely erroneous. The fact that the aforesaid property was available with the landlord before the institution of the suit, is certainly relevant for deciding the issues of bonafide requirement and comparative hardship. The property was sold in the year 1994 i.e. before the institution of the suit. There is no ground to deny the amendment. Therefore, the amendment deserves to be allowed. The fact that the original plaintiff was holding the aforesaid property before institution of the suit is an admitted fact in as much the landlord has placed on record a true copy of the registered conveyance dated 7 th August, 1994 in respect of the said property. In view of this position, on the basis of the amendment it will not be open for the parties to lead any additional evidence and the appellate court will read in evidence the copy of sale deed produced on record. 3] Hence, I pass the following order (a) The impugned order dated 28 th July, 2008 is quashed and set aside and the application made by the petitioner exhibit 22 is allowed. kbp 3 7846-08.sxw (b) The appellate court will permit the petitioner to carry out the amendment to the written statement. (c) A certified copy of the sale dated 2 nd August, 1994 placed on record of the appeal by the concerned respondents shall be read in evidence. (d) It will not be open for the parties to led additional evidence on the basis of amendment. However, while deciding the appeal finally the appellate court will have to consider the effect of disposal of the said property prior to the institution of the suit. (e) Writ Petition is, accordingly, partly allowed in the above terms with no order as to the costs. Hearing of the appeal is expedited. ( A.S.OKA, J. )