1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8713 OF 2009 Sm. Sudha B. Vithalani ........ Petitioner versus Sudhir Kewalchand Vora & ors ........Respondent. Mr. J.S.Kini i/b. Suresh Dubey adv. for the Petitioner Mr. P.S. Dani i/b. Raj Baid adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 17th November, 2009. P. C.: 1. The petitioner is the legal representative of the original defendant who was in occupation of the premises as a tenant. The respondent landlord instituted a suit for ejectment and possession against the original defendant on the ground that the defendant has acquired alternate suitable residential accommodation. The trial court decreed the suit as the plaintiff established that the defendant has acquired a residential flat for her accommodation at Mahalaxmi, Mumbai and thus decreed the suit. An appeal is carried by the defendant before the Appellate Bench of the Small Causes Court. The original defendant expired during pendency of the appeal and hence the present petitioner, who is the daughter of the defendant and who was staying along with the defendant in 2 the flat in question, came to be brought on record as legal representative of the deceased, as she claimed the status of the deemed tenant. During the pendency of the appeal two applications are moved by the present petitioner. The first one is purported to have been filed under Order 41 Rule 27 seeking to lead additional evidence and the other application for amendment of written statement purported to have been filed under Order 6 Rule 17 of CPC. In both the applications the subsequent event which is tried to be brought on record either by way of leading evidence at Appellate stage or amendment of the written statement is to the effect that the brother of the petitioner who is one of the heir of the original deceased defendant has sold the flat which was acquired by the tenant at Mahalaxmi and thus the present petitioner does not have any alternate suitable residential accommodation. The first Appellate Court has rejected both the applications by holding that the sale of the alternate suitable residential accommodation by one of the legal heirs of the defendant shall have no bearing on adjudicating the issue involved in the main suit, which pertains to acquiring of an alternate suitable residential accommodation by the defendant tenant. The present petitioner is on record as legal representative of the original defendant. If the original defendant could not have taken advantage of the fact of sale of the premises at a later point of time, the present petitioner who stands in the shoes of the deceased defendant cannot claim a better right. Holding that no independent right can be claimed by the present petitioner, the 3 applications are rejected by separate orders which orders are challenged in the present petition. 2. Perused the impugned orders. The view taken by the first appellate court in rejecting the applications cannot be faulted. Hence the petition is summarily rejected. (A. P. Deshpande, J.)