It was next urged by Shri Vashi that after the issue was remitted back to the Appellate Court by this Court by its judgment dated 28.9.1990, the tenant has submitted an application for permission to amend his written statement, taking a pleas that as the alterations and additions that were made, were for the better enjoyment of the suit premises, the landlord is not entitled to a decree for possession under Section 13(1)(b) of the Act. The application for amendment in the writing statement sought by the tenant was rejected by the Appellate Court. However, this Court allowed the amendment on the condition that no additional evidence would be led. Shri Vashi. urged that though this Court allowed the tenant to amend their written statement, it is clear from the observations in paragraph 19 of the order of the Appellate Court dated 1st November, 1993 that this plea was not considered by the Appellate Court on the ground that the plea taken by the tenant was an inconsistent plea. In the submission of Shri Vashi the plea taken by the tenant was not an inconsistent plea, but was an alternate plea whereby the tenant urged that if the Court holds that the additions and alterations carried out by the tenant in the suit premises are of permanent nature then they were necessary for better enjoyment of the properly. He further urged that basically it was the contention of the tenant that the additions and alterations carried out in the suit premises were not of permanent nature. In my opinion, these two submission of Shri Vashi that additions and alterations made in the suit premises by the tenant were not of permanent nature and that even if they were assumed to be so they were necessary for beneficial enjoyment of the property, can be conveniently considered together with reference to each of the additions and alterations made in the premises. Before proceeding to do so, I may observe here that the Appellate Court, was not right in refusing to consider the plea of the tenant that additions and alterations were for the beneficial enjoyment of the property.
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Bombay High Court
Ramrao Balaji Kothare And Ors. vs Lila, Widow Of Dr. Yeshwant ... on 28 January, 1997
Equivalent citations: (1997) 99 BOMLR 400
Bench: D Deshmukh
