1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1680 OF 2010 Vasant Sadashiv Karkhanis (since deceased) through his heir and legal representative Mr.Ravindra Vasant Karkhanis .. Petitioner versus Raghunath Gopal Deshmukh .. Respondent Mr.P.G.Karande for the petitioner. Mr.P.K.Dhakephalkar Sr. Advocate with N. Shimpi for the respondent CORAM : A.S.OKA, J. DATE : 18th March 2010. JUDGMENT: . Heard learned counsel appearing for the petitioner and the learned senior counsel appearing for the respondent. Considering the narrow controversy involved in the petition, the same is taken up for final disposal at admission stage. 2. The petitioner is the legal representative of the original defendant and the respondent is the original plaintiff. The respondent-plaintiff filed a suit for eviction against the petitioner in respect of the suit premises more particularly described in the plaint. The suit was filed on various grounds including bonafide need. The trial Court decreed the suit. An appeal was preferred by the petitioner before the Appeal Bench of the Court of Small 2 Causes. 3. An application was made in the pending appeal by the petitioner for amendment of the memorandum of appeal as well as to the written statement. By the proposed amendment, the petitioner came out with a case that during the pendency of the appeal, the wife of the respondent expired. In the suit one of the grounds pleaded by the respondent was that the respondent’s wife and respondent’s daughter-in-law were having strained relationship. By the amendment it was sought to be contended that in view of the sad demise of the wife of the respondent , the said ground will not survive. By the amendment, reliance was sought to be placed on letter dated 13th February 2007 issued by the concerned ward office of the Bombay Municipal Corporation. According to the petitioner the said letter shows that the respondent is the owner of the entire ground floor of the building and he has kept the ground floor premises locked. The last part of the amendment pleaded was for incorporating alleged subsequent event of the petitioner’s wife undergoing surgery of brain. It is sought to be pleaded by the petitioner that he is suffering from cervical spondiliosys and amaoebic colitis and other old age ailments. It is sought to be contended that the petitioner’s wife is still not cured from the after effects of the brain surgery and she is taking treatment in a hospital which is close to the suit premises. It is pointed out that the petitioner’s wife has undergone brain surgery during pendency of the appeal in the Appellate Court. By the impugned order, the application made by the petitioner was partly allowed. The petitioner was permitted to 3 amend the memorandum of appeal for incorporating additional grounds which are referred to above. However, prayer made by the petitioner for carrying out amendment to the written statement was rejected. 4. The learned counsel appearing for the petitioner submitted that the proposed amendment was based on subsequent events. He submitted that the proposed amendment will have direct bearing on the issue of bonafide requirement and comparative hardship. He submitted that unless written statement is permitted to be amended, the petitioner will not be entitled to lead additional evidence. He submitted that if a case was made out for permitting amendment of the memorandum of appeal, surely amendment of the written statement ought to have been permitted. 5. The learned senior counsel appearing for the respondent submitted that decree is on the ground of bonafide requirement which is passed in the year 2005 and the application for amendment is nothing but an attempt to delay the proceedings of the appeal. He submitted that this Court has already passed an order directing that the appeal shall be disposed of expeditiously and in fact a time bound schedule has been fixed which requires the Appellate Court to decide the appeal before April 2010. He submitted that the proposed amendment is nothing but an attempt to secure order of remand. The learned counsel appearing for the petitioner on instructions stated that the petitioner does not desire to seek remand and he may be permitted to examine four witnesses before the Appellate Court. 4 6. I have given careful consideration to the submissions. Perusal of the text of the amendment shows that the same is based on events which have been taken place after the suit was decided by the trial Court. When the Court considers application for amendment of pleadings, it is not open to go into the merits of the text of the amendment. Three additional paragraphs were sought to be added in the written statement the contents of which are already referred to above. Certain grounds were to be added in memorandum of appeal based on the said three paragraphs. The Appellate Court has permitted the petitioner to carry out amendment to the memorandum of appeal. As the amendment is based on subsequent events, the same ought to have been permitted. The amendment may have some bearing on the ground of eviction. Unless petitioner is permitted to amend the written statement it will not be permissible for the petitioner to adduce additional evidence. Considering the nature of the amendment sought, amendment of the written statement ought to have been allowed. 7. It is obvious that if amendment of the written statement is permitted, the petitioner will be entitled to apply for leading additional evidence. While disposing of that petition, a liberty could be granted to the petitioner to apply before the Appellate Court for grant of permission to lead additional evidence. As a result of adopting the said approach, there will be further delay in disposal of the appeal. The learned counsel appearing for the 5 petitioner has made a statement that the petitioner will not seek order of remand and he may be permitted to examine maximum four witnesses before the Appellate Court. To avoid further delay, the said request deserves to be acceded to. If the petitioners are permitted to lead additional evidence, it is obvious that even the respondent will be entitled to lead evidence by way of rebuttal. 8. Hence, petition is disposed of by passing following order: : O R D E R : (a) The impugned judgment and order dated 18th February 2010 is modified and the prayer made in the application at Exhibit 7 to carry out amendment to the written statement is also allowed in addition to permission already granted to carry out amendment to the memorandum of appeal. (b) The Appellate Court will permit the petitioner to adduce evidence by production of documents which are relevant to three additional paragraphs permitted to be added. The petitioner shall be permitted to examine maximum four witnesses in addition to himself. It is obvious that even the respondent will be permitted to lead additional evidence by way of rebuttal. (c) The petitioner will not seek any adjournment on any unreasonable ground and will co-operate with the Appellate Court for 6 expeditious disposal of the appeal. (d) Appeal shall be decided as expeditiously as possible and preferably on or before 31st July 2010. (e) Petition is allowed in above terms. (A.S.OKA,J)