1 WP 8857.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8857 OF 2011 Manoj @ Dhiraj Nandlal Toshniwal Age : 40 Yrs., Occ. Business, Indian inhabitant, residing at Raibhavan, Motinagar, Near Kalpi school, Latur – 413 512. .... PETITIONER V E R S U S Ramkishan Bankatlalji Malu Age : 85 Occ. Lawyer, Also an Indian inhabitant Residing at Hanuman Chowk, Malu Building, Latur – 413 512. .... RESPONDENT Mr. Manoj M. Kondekar, Advocate holding for Mr. D.L.Suryawanshi, Advocate for the petitioner. Mr. V.D.Gunale, Advocate for Resp. No. 1. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 30/11/2011. 2 WP 8857.2011 - [ J ] ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present respondent had filed eviction proceedings against the present petitioner. The same came to be allowed. Aggrieved thereby the petitioner filed Appeal before the District Court. During the pendency of the Appeal, the petitioner moved an application [ Exh. 71 ] for amendment in the Written Statement. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 3. The learned counsel for the petitioner submits that the event which is sought to be brought on record by way of amendment, is subsequent to the passing decree. The decree is passed on 11/12/2008 by the trial Court and the possession of the shop has been received by the present respondent in the month of May, 2009. As the said event is subsequent to the decision in the Suit by the trial Court, the appellate Court should have allowed the amendment and more particularly when the eviction is sought on the ground of personal bonafide requirement, the subsequent events are required to be taken into consideration. The learned counsel contends that the Court below only on the ground that 3 WP 8857.2011 - [ J ] the application is filed belatedly, has rejected the application. 4. Mr. Gunale, the learned counsel for the respondent supports the Order and states that the petitioner can not claim premium over his negligence. No due diligence has been shown. Even in the evidence, the present petitioner had stated before the trial Court that the eviction proceedings are filed and eviction decree is obtained against other respondent, but no such amendment was made. Even the Appeal was filed in the year 2009 and in the Appeal memo, a ground was raised to that effect. Thereafter, the petitioner had also filed application [ Exh. 32 ] on 13/11/2009 seeking production of documents regarding the alleged possession of the shop by the present respondent. At that time also, no amendment is sought and the present application is made almost after two ( 2 ) years thereafter. In view of the above facts, the District Court was justified in rejecting the application of amendment. 5. With the assistance of the learned counsel, I have gone through the orders. 6. One thing is manifest that the amendment sought is in respect of an event, which according to the petitioner, has occured after the decree by the trial Court is passed and during the pendency of the Appeal. 4 WP 8857.2011 - [ J ] Pendency of the eviction proceedings of another tenant and a decree thereof is distinct than getting the actual possession of the shop. It is the actual possession that would be relevant while determining the concept of personal bonafide use, vis-a-vis the hardship. 7. It is trite that the merits of the amendment application are not required to be considered while considering the amendment application. For the delay that has been caused, the present respondent can be compensated by cost. What would be the relevance of the said alleged subsequent event, as contended by the present petitioner, is for the Court to consider at the time of deciding the matter on merits. 8. In view of the above, I pass the following order. The impugned order is quashed and set aside. The application [ Exh. 71 ] filed by the petitioner in Rent Appeal No. 1 of 2009 is allowed subject to condition that the petitioner pays cost of Rs. 10,000/- [ Rupees Ten Thousand only ] to the respondent within the period of four ( 4 ) weeks from today i.e. 04/01/2012. Payment of cost is condition precedent. 9. The Appellate Court shall expeditiously decide the Appeal on its own merits preferably within the period of four ( 4 ) months from 5 WP 8857.2011 - [ J ] today. 10. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8857.2011 - [ J ]