1 wp-8620.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8620 OF 2010 M/s. Silver jubilee Motors Ltd. .. Petitioner. Vs Abdul Kadir Zaffery. .. Respondent -- Shri S.S. Patwardhan for the Petitioner. Shri R.S. Apte, Sr. Advocate i/by Shri V.P. Patankar for the Respondent. -- CORAM : A.S.OKA, J. DATE : 9TH DECEMBER, 2010 P.C: . Heard learned counsel appearing for the Petitioner and the learned Senior Counsel appearing for the Respondent. 2. The Petitioner is the original Defendant in a suit filed by the Respondent-Plaintiff. The suit for eviction filed by the Respondent-Plaintiff has been decreed by the Trial Court. An appeal is pending in the District Court. 3. During the pendency of the appeal, the Petitioner was permitted to amend the Written Statement. Thereafter, two applications were made by the Petitioner at Exhibit-92 and Exhibit-94. The prayer in the application at Exhibits – 92 was for framing two additional issues which 2 wp-8620.10 read thus:- “(a) Does the defendant prove that the bonafide requirement of the plaintiff does survive in view of the amended pleadings ? (b) Does the plaintiff prove that the description of the suit property as given in plaint para 1 is true and correct ? Whereas the application at Exhibit -94 was for amendment of the order passed on 12th August, 2010 by which the Appellate Court permitted the Petitioner to carry out amendments to the Written Statement. The prayer made in the said application was for passing an order of remand to the Trial Court for recording additional evidence. By the impugned order, the said applications have been rejected by the Appellate Court. 5. After having heard the learned counsel appearing for the Petitioner, I find that no case is made out for interference in the jurisdiction under Article 227 of the Constitution of India. While allowing the application for amendment to the Written Statement, the Appellate Court appointed a Court Commissioner to record further evidence of the parties on the basis of the amendment of written statement. It must be noted here that the learned Commissioner was already appointed by the Appellate Court earlier when the Respondent-Plaintiff was permitted to amend the Plaint. Thus, from the order allowing the amendment of the written statement, it is apparent that the parties were permitted to lead further evidence on the basis of the amended pleadings. Therefore, the Appellate 3 wp-8620.10 Court was justified in not accepting the prayer made for passing an order of remand on the application at Exhibit – 94. 6. As far as bonafide need pleaded by the Respondent is concerned, the Appellate Court, while deciding the appeal finally is bound to consider the merits of the case. The Appellate Court is bound to consider whether the evidence adduced in the appeal shows that the alleged need has been eclipsed. As the contention regarding incorrect description of the property has been raised by the Petitioner in the amended Written Statement and as the Petitioner has been permitted to lead evidence, even the said contention is bound to be considered by the Appellate Court while deciding the appeal finally. 7. Hence, subject to what is observed above, no interference is called for with the discretionary order of the Appellate Court. The Writ Petition is rejected. (A.S.OKA, J)