Bombay High Court
Shri Ashok S/O Ramkrishna ... vs Smt. Pournima W/O Bhimrao Kewate on 3 July, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6976 OF 2016
01] Shri Ashok s/o Ramkrishna Kalbande,
Aged about 62 years, Occ. Business.
02] Smt. Anjali w/o Ashok Kalbande,
Aged 50 years, Occ. Business,
Both r/o 30, Sanmarg Nagar, Nagpur. .... Petitioners
-- Versus -
Smt. Pournima w/o Bhimrao Kewate,
Aged 56 years, Occ. Nil,
R/o Plot No.40, Sanmarg Nagar, Nagpur. .... Respondent
Shri S.G. Shukla, Advocate for the Petitioners.
Shri D.G. Paunikar, Advocate for the Respondent.
CORAM : KUM. INDIRA JAIN, J.
DATE : JULY 3, 2017.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned Counsel for the parties.
02] This petition takes an exception to the order dated
09/07/2015 passed by learned Adhoc District Judge-5, Nagpur in
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R.C.A. No.387/2010 below Exh.29 thereby rejecting an
application for amendment moved by petitioners.
03] Few facts relevant for disposal of this petition may be
stated in brief as under :
i. Petitioners are tenants. Respondent is a landlady.
Respondent filed civil suit for ejection, possession and
arrears of rent against petitioners. Small Causes
Court, Nagpur passed decree for eviction on the
ground of arrears of rent. The second ground raised
by landlady regarding bona fide need was negatived
by the Court. R.C.A. No.387/2010 was preferred by
tenants/petitioners against the judgment and decree
passed by Small Causes Court, Nagpur. In the said
appeal, cross-objections have been filed by landlady/
respondent claiming decree for eviction on the ground
of bona fide need.
ii. During pendency of appeal, petitioners came to know
that other tenants occupying the shops have vacated
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the tenanted premises and handed over possession to
landlady. Therefore, application for amendment was
moved initially on 24/02/2015 vide Exh.29 and second
application for amendment was filed on 03/04/2015
vide Exh.32. Both the applications came to be
rejected by the Appellate Court.
iii. Against rejection of second application [Exh.32],
petitioners preferred Writ Petition No.115/2016. Vide
order dated 31/08/2016, this Court allowed the writ
petition and the order dated 09/07/2015 passed by
the Appellate Court below Exh.32 came to be quashed
and set aside. The order dated 09/07/2015 passed
below Exh.29 by the first Appellate Court is the
subject matter of challenge in this petition.
04] Learned Counsel for respondent vehemently
contended that application is nothing but the repetition of
application which was allowed in writ petition by this Court. With
the assistance of learned Counsel for petitioners, this Court has
gone through the proposed amendments in the first and also in
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the second application. It is apparent that in the first amendment
application, proposed amendment relates to vacation of Shop
No.7 by respondent, whereas the second application was
pertaining to Shop Nos. 2, 4, 5 & 6. Since, the landlady has filed
cross-objections against the judgment and decree and her claim
for eviction is based on bona fide need, this Court for the same
reasons as given in the judgment and order in Writ Petition
No.115/2016 finds that the Lower Appellate Court has committed
an error in rejecting the application for amendment. Interference
is thus warranted in writ jurisdiction. Hence, the following order:
ORDER
I. Writ Petition No.6976/2016 is allowed.
II. The impugned order passed by Appellate Court
below Exh.29 in R.C.A. No.387/2010 is quashed and
set aside.
III. Application [Exh.29] is allowed. Petitioners to carry
out amendment within a period of two weeks.
IV. Respondent is at liberty to carryout the
consequential amendment, if any.
V. Appeal is pending since 2010. The first Appellate
Court to decide the appeal within a period of four
months from the date of communication of this
order.
VI.Rule is made absolute in above terms with no order
as to costs.
*sdw (Kum. Indira Jain, J.)
