1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5568 OF 2008 Smt.Shahajabdi Badashah Attar. ..Petitioner. V/s. Najama Imamuddin Shaikh. ..Respondent. Shri Amit Borkar for petitioner. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 25, 2008. DATE : AUGUST 25, 2008. DATE : AUGUST 25, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. In my opinion, no fault can be found with the ultimate conclusion reached by the Court below in rejecting the Application for amendment of the Written Statement moved for the first time by the Defendant in Appeal before the Appellate Court. The only explanation offered for such belated amendment is that the assertions made in the proposed amendment are relevant facts to be considered in the Appeal. 3. Insofar as the first part of the proposed amendment is concerned, the Counsel for the Petitioner fairly accepts that defence with regard to the principle of adverse possession is already part 2 of the Written Statement as is rightly observed by the trial Court. Thus understood, no fault can be found with the Appellate Court for having found that no amendment to that effect was necessary. 4. Insofar as second proposed amendment is concerned, whereby the Petitioner intends to assert that the sale deed executed in favour of the Plaintiff is invalid and illegal, that is a question of fact which ought to have been raised in the Written Statement before the trial Court itself. That is a new plea which cannot be permitted to be taken for the first time in Appeal. It is not the case of the Petitioner that the said plea was unavailable to the Petitioner when the Written Statement was filed before the trial Court. In other words, the explanation offered by the Petitioner for permitting amendment for the first time at appellate stage in this regard will have to be stated to be rejected. 5. Suffice it to observe that no interference is warranted in exercise of powers under writ jurisdiction under Article 227 of the Constitution. Hence Petition is dismissed. 3 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)