Shri. Ramswaroop S/O Mishrilal ... vs Shri Umashankar Deochand Paliwal ...
2017 Latest Caselaw 1663 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR

                            WRIT PETITION NO.195 OF 2017

            Shri Ramswaroop s/o Mishrilal Daliya,
            Aged about 81 years,
            Occ: Nil, R/o Plot No.547, Daliya Kunj,
            Infront of Poonam Mall, Hiwari Layout,
            Wardhaman Nagar, Nagpur through its
            Power of Attorney Holder
            Shri Mahesh s/o Ramswaroop Daliya,
            Aged about 44 years, Occ: Business,
            R/o Plot No.547, Daliya Kunj,
            Infront of Poonam Mall, Hiwari Layout,
            Wardhaman Nagar, Nagpur,
            Tahsil and District Nagpur.          ....... PETITIONER

                                            ...V E R S U S...

 1]         Shri Umashankar Deochand Paliwal,
            Aged about 54 years,
            Occ: Business, R/o Paliwal Bhawan,
            Gandhibagh, Nagpur,
            Tahsil and District Nagpur.

 2]       Shri Yogesh Deochand Paliwal,
          Aged about 48 years,
          Occ: Business, R/o Paliwal Bhawan,
          Gandhibagh, Nagpur,
          Tahsil and District Nagpur.                        ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri A.N. Ansari, Advocate for Petitioner.
          Shri P.P. Kotwal, Advocate for Respondent Nos.1 & 2.
 -------------------------------------------------------------------------------------------

                      CORAM:  R.K. DESHPANDE, J. 

th APRIL, 2017.

                      DATE:      12

 ORAL JUDGMENT



 1]                   Rule,   made   returnable   forthwith.   Heard   finally   by




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consent of the learned counsels appearing for the parties.

2] The Trial Court has passed a decree for eviction and

possession in favour of the land-lord and against the tenant.

The tenant preferred an appeal, which is pending before the lower

Appellate Court. The petitioner-tenant filed an application under

Order VI Rule 17 of the Code of Civil Procedure for amendment of

written statement introducing the events, which according to the

petitioner/defendant occurred in the year 2015 i.e. during the

pendency of appeal. The reply was filed opposing the amendment

proposed. The lower Appellate Court has rejected the application

holding that the application is highly belated, there is no

substance in the application for amendment, the application

changes the nature of defence and it is filed only to prolong the

proceedings.

3] The averments made in the application for

amendment show that the events sought to be brought on record

occurred in the year 2015, which have bearing on the question of

bona fide requirement of the plaintiff, as pleaded in the plaint.

The amendment is necessary for deciding the real controversy

involved in the matter and the criteria of "due diligence" under

wp195.17.J.odt 3/3

proviso to Order VI Rule 17 of the C.P.C. would not be applicable.

It is merely a defence raised, which does not change the nature of

the litigation. The lower Appellate Court has therefore, committed

an error in rejecting the application.

4] In the result, the writ petition is allowed. The order

dated 07.09.2016 is hereby quashed and set aside. The application

for amendment is allowed. The amendment be carried out within

a period of 15 days from the date of first appearance of the parties

before the lower Appellate Court. The parties to appear before the

lower Appellate Court on 18.04.2017. The consequential

amendment, if any, can be carried out by the respondents.

JUDGE

NSN