Majorie Passanah and Others Vs Mumtaz I. Shaikh

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 2401 OF 2006

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 Mrs. Majorie Passanah & ors. ... Petitioners

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V/s

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 Mrs. Mumtaz Iqbal Shaikh ... Respondent

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 Mr. Vishwanath Talkute for the petitioners.

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 Mr. P.S. Dani for the respondent.

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CORAM: P.V. KAKADE, J.

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DATED: 10TH APRIL, 2006
P.C.:

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 1. Heard learned counsel for both parties. Perused the
 record.

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 2. Rule. Rule made returnable forthwith.

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 3. The petitioner defendants have preferred this
 petition against the order dated 13.1.2006 passed by the
 Trial Court discharging the Interim Notice No. 1435 of
 2005 in R.A.E. Suit No. 676/1273 of 1998.

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 4. The respondent plaintiff has filed the suit against

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 the petitioners for eviction from the suit premises and
 possession thereof. The original defendant No.1 has
 died and present petitioners are his legal heirs. The
 issue in respect of their right to tenancy is also
 subjudiced in the said suit and additional issue is
 framed to that effect by the Trial Court. The stage of
 the suit is that evidence of both parties is over and
 the matter is fixed for final arguments.

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 5. At that stage, notices were taken out by defendant
 No.1a and 1b seeking amendment of the written statement
 as per the schedule of the amendment. By the said
 amendment they sought to bring on record the subsequent
 events namely, the notice issued by MHADA in Times of
 India news paper on 31.8.2005 and notice also to father
 of defendant No.1b which was "Warning Notice" dated
 5.9.2005 stating that the property which was shown in
 the plaint as the property, alternatively available for
 occupation of defendants was declared as dilapidated and
 in dangerous condition and, therefore, not suitable to
 reside therein and, therefore, notice for eviction came
 to be issued. The second point of amendment was to the
 effect that the present respondent plaintiff had
 acquired vacant and peaceful possession of residential
 flat admeasuring 1250 sq.ft. carpet area of the suit

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 flat is finally acquired by them after litigating that
 matter upto the Apex Court.

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 6. The Trial Court Judge, after hearing both parties,
 came to the conclusion that the amendment application
 was not tenable in law at the stage of final hearing as
 the facts sought to be brought on record were already on
 record and, therefore, notice came to be discharged and
 application for amendment was rejected.

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 7. Without further elaboration I must note that
 findings of both the Courts below are quite relevant
 having bearing over the issues involved in the suit. So
 far as the MHADA notice of August 2005 is concerned, in
 my considered view, it would be required to incorporate
 in pleadings of the defendant especially when the same
 property is shown in the plaint para 79 to be the
 property which is sought to be alternatively available
 for occupation of the defendant which is now allegedly
 rendered unsuitable for respondents and in fact notice
 to vacate the same is issued. So far as the acquisition
 of another flat by the respondent is concerned, that
 also amounts to subsequent event having bearing over the
 issues involved. The learned counsel for the respondent
 urged that this application was frivolous one and

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 malafide in the sense that it was preferred only to
 delay further the pending suit which is at the final
 stage of arguments.

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 8. In my considered view, both these points sought to
 be brought on record by way of amendment are required to
 be incorporated in pleadings so as to enable the
 defendant to lead evidence on those points which would
 have bearing over the issues involved. On the other
 hand, if the amendment is allowed, there would not be
 any prejudice to the other side if the time bound
 programme is fixed by this Court for final disposal of
 the pending suit.

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 9. Under the circumstances, I am inclined to accept the
 plea of the petitioner. Rule is made absolute. The
 petition is allowed in terms of prayer clause (a).

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 10. The Trial Court shall allow the defendants to amend
 the written statement immediately. Thereafter the
 additional issues, if any, would be raised and both
 parties would be allowed to lead evidence with regard to
 the limited points involved by way of said amendment and
 the Trial Court, under no circumstances, would give
 opportunity to both sides to bring on record any further

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 aspects beyond the issues involved by way of amendment
 in the written statement. All the said process shall be
 completed within one month from the date of this order
 and then the Trial Court shall proceed according to the
 law.

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 With these directions the petition stands disposed of
 with no order as to costs.

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 Parties to act on the authenticated copy of this order.

Majorie Passanah and Others v. Mumtaz I. Shaikh

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Majorie Passanah and Others v. Mumtaz I. Shaikh

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