Mrs. Jyoti W/O Avinash Lavhale vs Smt. Usha Udaychandji Jain And Ors
2016 Latest Caselaw 3510 Bom

    912-WP-4676-15                                                                                1/4


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                       
                              NAGPUR BENCH, NAGPUR.




                                                               
                               WRIT PETITION NO.4676 OF 2015
                                               

    Sitabai wd/o Ashok Bhanarkar 
    Aged about 61 years, Occ. Business, 




                                                              
    CL-II, R/o Jagnath Budhwari Road,  
    Bharat Mata Chowk, Nagpur.                                            ... Petitioner

    Vs. 




                                                
    Mangala w/o Ravindrarao Tidke 
    Aged about 66 years, Occ. Household, 
    R/o Bharat Mata Chowk, Cradock Road,
    Jagnath Budhwari, Nagpur.                                             ... Respondents. 
                                 
    Shri K. B. Ambilwade, Advocate for petitioner. 
    Shri P. V. Vaidya, Advocate for respondent. 
      
   



                                                    CORAM  :  A.S.CHANDURKAR, J. 

                                                     DATE     :  JUNE 21, 2016

    Oral Judgment :  

Rule. Heard finally with consent of learned counsel for the parties.

The petitioner is aggrieved by the order passed by the Appellate

Court below Exhibit-15 thereby rejecting the application moved by the

petitioner for amending the memorandum of appeal.

2. The respondent is the original plaintiff who had filed suit for

eviction of the petitioner on the ground that bonafide need. The suit

was decreed by the trial Court on 17/12/2013. Against the said decree,

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the petitioner filed an appeal. During pendency of the said appeal, the

petitioner moved an application seeking leave to amend the

memorandum of appeal. The amendment sought was that on

15/03/2015 a tree had fallen on one of the suit rooms which was not

being repaired by the appellant. A further prayer was sought to be added

that the respondent be directed to take steps therein or permit the

petitioner to repair the premises. By the impugned order, the Appellate

Court held that the petitioner had remedy under provisions of Section

14(2) of the Maharashtra Rent Control Act, 1999 (for short, the said Act)

and therefore the amendment was not necessary. It therefore rejected

the application.

3. Shri K. R. Ambilwade, the learned counsel for the petitioner

submitted that the petitioner wanted to bring on record the fact that one

of the rooms was damaged as a tree had fallen on the suit premises.

According to him the petitioner was not claiming any monetary relief and

the facts mentioned in the amendment were being broguht on record.

He therefore submitted that the Appellate Court ought to have allowed

the application for amendment.

Shri P. V. Vaidya, the learned counsel for the respondent submitted

that the amendment sought was not relevant as the decree under

challenge was passed on the ground of bonafide need of the respondent.

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By the amendment a prayer was also being made relating to repairs of the

premises in question and the same were beyond the scope of the appeal.

He therefore submitted that the Appellate Court rightly rejected the

application.

4. I have heard the respective counsel and I have perused the

documents filed on record. It is not in dispute that the suit for eviction is

filed only on the ground of bonafide need under provisions of Section

16(1)(g) of the said Act. The amendment that has been sought while

challenging the said decree is with regard to a tree having fallen on one

of the rooms resulting in damage to the same. A prayer is also made with

regard to carrying repairs to the said room. The petitioner has not

amended his pleadings in that regard to bring the said fact on record.

Mere amendment in the memorandum of appeal which has been filed

challenging the decree for eviction on the ground of bonafide need would

serve no purpose inasmuch as said ground if permitted to be raised in the

memorandum of appeal is not supported by any pleading whatsoever on

record. Moreover, the Appellate Court has considered the fact that the

prayer for seeking repairs has been been made but the procedure

contemplated under Section 14(2) of the said Act has not been followed.

Hence the amendment as sought is misconceived in the light of the fact

the decree as passed is on the ground of bonafide need. The

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Appellate Court therefore did not commit any error in rejecting the said

application.

5. In view of aforesaid there is no case made out to interfere in writ

jurisdiction. The present order however shall not preclude the petitioner

from bringing on record the subsequent facts or for seeking any relief

under Section 14 of the said Act in accordance with law if he so desires.

Rule stands discharged with no order as to costs.

JUDGE

Asmita