Bombay High Court
Jagdish Prataprai Wariyani vs Sayyad Jahiroddin Sayyad on 10 January, 2018
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6283 OF 2016
Jagdish Prataprai Wariyani,
Age-48 years, Occu-Business,
R/o Shruiram Shop, Kapad Lane,
Latur, Dist.Latur -- PETITIONER
VERSUS
Sayyad Jahiroddin Sayyad Ibrahim,
Age-53 years, Occu-Business,
R/o Sale Galli, Latur,
Dist. Latur -- RESPONDENT
Ms.Anjali Dube (Bajpai), Advocate for the petitioner.
Mr.C.R.Deshpande, Advocate for the respondent.
(CORAM : RAVINDRA V. GHUGE, J.)
DATE : 10/01/2018
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is the tenant in the original Rent Suit
NO.6/2005. Since the suit has been decreed on the ground of
bonafide requirement, the petitioner has preferred the Rent Appeal
No.04/2010. The petitioner is aggrieved by the order of the Appellate
Court dated 16/03/2016, by which application Exh.68 filed by the
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petitioner/appellant for bringing on record the fact of the demise of
Sayyad Ibrahim Sayyad who is the father of the original plaintiff, has
been rejected.
3. I have considered the strenuous submissions of the learned
Advocates for the respective sides and have gone through the petition
paper book. While issuing notice on 21/06/2016, this court has
stayed the appeal by granting ad-interim relief in terms of prayer
clause 'C'.
4. The contention of the appellant is that the demise of the father
of the plaintiff is likely to have an impact on the pending appeal since
the suit has been decreed on the ground of bonafide requirement and
the appellant is sought to be evicted.
5. Learned Advocate for the original plaintiff contends that the
demise of his father is neither decisive nor would it have any effect on
the pending appeal as whether the father of the plaintiff was alive or
not, will have no effect on the cause of action put forth by the
plaintiff.
6. It is settled law that the merits of the amendment are not to be
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assessed while considering an application under Order 6 Rule 17 of
the CPC. It only needs to be assessed as to whether the proposed
amendment leads to a cause of action which is otherwise barred by
limitation, whether such a cause of action would alter the nature of
the suit and whether such a request for amendment is belated so as
to be struck by the proviso below Rule 17 under Order 6.
7. Keeping the law in view, it needs to be noted that the father of
the plaintiff passed away on 12/11/2015 and application Exh.38
seeking amendment for introducing the factum of the death of
Sayyed Ibrahim Sayyed, was filed on 30/11/2015. Neither are the
merits of the proposed amendment to be seen, nor can the
application be termed as being filed belatedly.
8. Considering the above, this petition is allowed. The impugned
order dated 16/03/2016 is quashed and set aside and Exh.38 is
allowed with the following directions :-
[a] The petitioner shall carry out the amendment on or before
25/01/2018 in the pending appeal and no extension of time
shall be sought for the said purpose, lest the leave to amend
shall stand taken away.
[b] The plaintiff is at liberty to file an additional written statement
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if so desired, on or before 09/02/2018.
[c] Considering the 8 years of pendency of the appeal, the learned
Appellate Court shall proceed to decide Rent Appeal No.4/2010
as expeditiously as possible and in any case on or before
30/04/2018.
9. The parties shall act on the print out taken from the Official
Website of this Court.
10. Rule is made absolute accordingly.
( RAVINDRA V. GHUGE, J.)
khs/JAN,2018/6283-d
