JUDGMENT - A.M. KHANWILKAR, J.:---By this petition under Article 227 of the Constitution of India, the petitioner has challenged the orders passed by the trial Court dated 19-7-1986 below Exhibits, 63, 65, 72 and 97 in Regular Civil Suit No. 96 of 1977. The petitioner had preferred the aforesaid four applications seeking amendment of the written statement, for framing an additional issue, to refer the issue regarding tenancy to the tenancy Court, and to frame an issue regarding rent respectively. All these applications have been rejected by the trial Court by separate orders.

2.During the course of hearing, it was pointed out to learned Counsel for the petitioner that the question raised, arising from the aforesaid applications made before the trial Court, the same can be kept open with liberty to the petitioner to raise the same before the Appellate Court, if need arises. This suggestion was made having regard to the fact that the hearing of the suit had virtually concluded, in that the recording of evidence had closed and the suit was actually to be placed for arguments, at which point of time the present applications were filed. Learned Counsel for the petitioner fairly accepted the said suggestion in so far as the applications at Exhibits 65, 72 and 97 respectively only. According to him, the decision on the said applications (Exhibits 65, 72 and 97) would not materially alter the position of his clients at this stage and would not cause any serious prejudice, but it was necessary to decide the application at Exhibit 63 and pass appropriate orders, for, the issue involved therein had a direct bearing on the outcome of the suit as the same goes to the root of the matter. I accept the said request and proceed to hear the matter only with regard to the issue involved in Exhibit 63. As aforesaid, the issues involved in the applications at Exhibits 65, 72 and 97 respectively, the same are kept open with liberty to the petitioner to urge the same before the Appellate Court, if necessary.

3.I have heard arguments of both the sides on the application at Exhibit 63. The said application was preferred by the petitioner before the trial Court praying for amendment of the written statement in view of the subsequent events after the filing of the written statement before the trial Court. According to the petitioner, the suit was filed on 21-4-1973 and the written statement was filed on behalf of defendant No. 2 on 1st September 1973; whereas the written statement on behalf of the petitioner defendant No. 1 came to be filed on 2-10-1973. It is contended on behalf of the petitioner that the certificate under section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948 issued in favour of plaintiff No. 2, which is the basis of instituting the suit before the trial Court, has since been cancelled vide order dated 22-10-1973 passed by the Maharashtra Revenue Tribunal, Bench at Pune, in Revision Application No. M.R.T. N.S. XII. 8/69. According to him due to the cancellation of the certificate under section 88-B of the Bombay Tenancy and Agricultural Lands Act, there has been a total shift in the claim set up on behalf of the plaintiffs and it would, therefore, be imperative to permit the petitioner defendant No. 1 to carry out the said amendment for full, complete and effectual adjudication of the matter.

4.The trial Court, on considering the rival contentions, was impressed by the stand taken by the respondents-plaintiffs that the prayer for amendment of the written statement made in the present application at Exhibit 63 was made on an earlier occasion and the same has been finally dismissed vide order dated 30-11-1976 passed below Exhibit 52. This is the only reason indicated in the impugned order passed below Exhibit 63.

5.I have carefully examined the order passed below Exhibit 52 dated 30-11-1976. In my view, the trial Court has completely misdirected itself in rejecting the present application on the ground that the prayer made ther

Click Here to Read the rest of this document