Allowed

Mohammad Salauddin Mohinuddin Malik v. Anwar Noor Mohammad Pirani and Another

Bombay HC22 Apr 2013WP/1913/2012

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the Bombay High Court Nagpur Bench allowed the petitioner's challenge against a first appellate court order that rejected an amendment application. The court held that the amendment, required to plead subsequent alienation of property by the landlord, did not change the nature of proceedings and was necessary to decide the bona fide need issue. The impugned or

What did the court decide?

The writ petition is allowed; the impugned order is quashed and set aside, and the application for amendment of the written statement is allowed.

Mohammad Salauddin Mohinuddin Malik Vs Anwar Noor… — Landlord and Tenant | Bombay HC (2013)

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WP1913-12

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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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WRIT PETITION NO. 1913/2012

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(MOHAMMAD SALAUDDIN MOHINUDDIN MALIK VERSUS ANWAR NOOR MOHAMMAD PIRANI)

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- - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders

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Shri A.M. Ghare, counsel for the petitioner. Shri M.P. Kariya, counsel for the R-1. Shri N.S. Khubalkar, A.G.P. for the R-2.

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CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 22, 2013.

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By this petition, the petitioner impugns an order passed by the first appellate Court on 04.02.2012 rejecting an application filed by the petitioner.

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The petitioner is a tenant. A suit was instituted by the respondent no.1-landlord against the petitioner on the ground that the petitioner had defaulted in payment of rent and the respondent no.1 required the suit premises for his son. The suit filed by the respondent no.1 was decreed. In a first appeal filed by the petitioner, the petitioner filed an amendment application seeking amendment to the written statement. It was the case of the petitioner that after the decree was passed on 26.10.2010, the respondent no.1-plaintiff had leased three shops to third parties on 07.03.2011, 18.03.2011 and 20.08.2011. It was sought to be pleaded by the petitioner that one shop was sold by the respondent no.1 during the pendency of the appeal on 24.06.2011. Since the proposed amendment did not change the nature of the case and since the amendment was necessary for deciding the issue of bona fide need, the petitioner filed the amendment application. The first appellate Court, however, by the impugned order dated 04.02.2012, rejected the amendment application.

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WP1913-12

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On hearing the learned counsel for the parties and on a perusal of the amendment application as also the impugned order dated 04.02.2012, it appears that the first appellate Court was not justified in rejecting the amendment application. The first appellate Court could not have held that the amendment application was filed with a view to protract the proceedings. The proposed amendment was necessary for deciding the controversy involved in the suit as the respondent no.1 had sought the possession of the property on the ground of bona fide need and by the proposed amendment, the petitioner wanted to plead that during the pendency of the appeal and after the passing of the decree, the respondent no.1 had leased out three shops to the tenants and had sold one of his shops. The first appellate Court committed a serious error in observing that the petitioner had not raised the said ground in the written statement. The petitioner could not have raised these pleas in the written statement as the shops were leased and sold, according to the petitioner, by the respondent no.1 after the passing of the decree and during the pendency of the appeal. The first appellate Court failed to consider that the proposed amendment did not change the nature of the proceedings and was extremely necessary for effectively and completely deciding the issue of bona fide need. The impugned order is unsustainable and is liable to be set aside.

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Hence, the writ petition is allowed. The impugned order is quashed and set aside. The application filed by the petitioner for amendment of the written statement is allowed.

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Order accordingly. No order as to costs.

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JUDGE

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APTE

Mohammad Salauddin Mohinuddin Malik v. Anwar Noor Mohammad Pirani and Another

Case brief

What is this about?

What did the court decide?

Mohammad Salauddin Mohinuddin Malik v. Anwar Noor Mohammad Pirani and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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