spb/- 1 wp3773-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 3773 OF 2011 Basavraj Chanmalappa Kapse ... Petitioner. V/s. Khalil Imran Shaikh ... Respondent. --- Mr. S.S.Shah for the Petitioner. Mr. A.A.Valsangkar a/with P.J. Das for the Respondent. ----- CORAM : G. S. GODBOLE, J. DATE : 14th SEPTEMBER, 2011. P.C. : 1 Rule. By consent, Rule is made returnable forthwith. Mr. Das waives service on behalf of the Respondent. 2 Heard Mr. Shah and Mr. Valsangkar for the respective parties. 3 The Petitioner is the original Defendant in RCS No. 508/2003 filed by the Respondent for possession under Maharashtra Rent Control Act, which has been decreed by the Trial Court on 10.11.2006 against which the Petitioner had filed Civil Appeal No. 34/2007 which is pending in the District Court, Solapur. The Petitioner filed Application Exh. 23 for amending his Written Statement for inserting paragraph 5A. By impugned spb/- 2 wp3773-11.sxw Judgment and Order dated 14.01.2011, the learned District Judge-1 at Solapur has dismissed the said Application. Hence, the present Writ Petition is filed. 4 Mr. Shah submits that the amendment in the Written Statement was required to be allowed since the Petitioner wanted to place on record subsequent events and the amendment was necessary for deciding the real controversy involved in the suit. According to the Petitioner, since the suit is on the ground of bonafide requirement, the death of late -Allabaksh on 30.10.2009 was relevant and the Petitioner wanted to insert the pleading that the Respondent had allegedly become owner of the entire property of said Allabaksh. 5 Mr. Shah submits that even if the amendment is allowed, the Petitioner will not make Application for remand to the Trial Court nor the Petitioner will make any request for recording of evidence by the Trial Court and that the Petitioner would only lead evidence of Petitioner and one other witness in the District Court, which evidence will be restricted only to the averments in paragraph 5(a) of the proposed amendment in the Written Statement. spb/- 3 wp3773-11.sxw 6 On the other hand Mr. Valsangkar, Advocate for Respondent opposed the Petition and pointed out Reply below Exh. 24 and contended that widow of Allabaksh was alive and she was running business of late Allabaksh and that the amendment Application was filed with malafide intention to delay the hearing of the Appeal. 7 I have considered the rival submissions. The fact that Allabaksh had died on 30.10.2009 is not disputed. It is not disputed that in the Written Statement it was the case of the Petitioner that Respondent was looking after the business of Allabaksh and hence, need of Respondent was disputed on that ground. 8 The question as to whether the business of Allabaksh is available to the Petitioner or whether the fact that widow of Allabaksh is running the business is the matter which would require evidence and on that ground amendment could not have been rejected. Since the question regarding availability of property of Allabaksh had been already pleaded, the subsequent event of death of Allabaksh is relevant for the adjudication of the real controversy involved in the suit and the same ought to have been allowed by the District Court. At the same time appropriate safeguards will have to be provided so that the Respondent is not spb/- 4 wp3773-11.sxw prejudiced. A case for interference under Article 227 of the Constitution of India is made out by the Petitioner. 9 Hence, I pass the following order : a) The impugned Judgment and Order dated 14.01.2011 passed by the learned District Judge-1, Solapur below Exh. 23 in Civil Appeal No. 34 of 2007 is hereby quashed and set aside and the amendment Application is allowed. The amendment shall be carried out on or before 15th October, 2011. b) The Petitioner will be permitted to lead evidence before the Appellate Court only of himself and one other witness and evidence will be restricted only to the averments in paragraph 5(a) of the Written Statement which is now allowed to be added by amendment. The District Judge will not allow the Petitioner to lead evidence beyond the scope of averments in para 5(a) nor to lead any other evidence and any effort to fill- up any lacuna in the original evidence led by Petitioner should not be permitted. The Respondent, if so desired will also be permitted to lead evidence in rebuttal. The Respondent will spb/- 5 wp3773-11.sxw also be at liberty to either amend the Plaint or file further pleadings in view of the subsequent events and in such further pleadings, he would be free to deal with the averments made by the Petitioner in paragraph 5(a) of the proposed amendment only. c) This entire exercise shall be completed and the learned Judge of the District Court shall decide the Appeal finally on or before 31st January, 2012. d) It is clarified that merely because the amendment is allowed, that shall not be construed to be an expression of any opinion about the rival contentions on merits of the controversy involved in the suit or the Appeal and the initial burden of proving the plea that on account of the subsequent event the need pleaded by Plaintiff and accepted by Trial Court has allegedly vanished or extinguished will be on the Petitioner. The learned Judge of the District Court may also frame an additional issue to that effect if found necessary. However, even if an additional issue is not framed; it would not be open to the the parties to claim any prejudice on that count spb/- 6 wp3773-11.sxw as they have sufficient notice regarding the additional controversy which is now allowed to be raised by permitting amendment of respective pleadings. e) Rule is made absolute in the aforesaid terms with no order as to costs. [G.S.GODBOLE, J.]