William Lewis vs Andrew D'Souza
2001 Latest Caselaw 84 Bom

JUDGMENT

A.M. Khanwilkar. J.

1. This petition under Article 227 of the Constitution takes exception to the order passed by the Appellate Bench of the Small Causes Court, Bombay dated 23-8-1991 in Int. Notice No. 2382 of 1988 in Appeal No. 440 of 1984. The said interim notice was filed by respondent-original defendant praying for amendment so as to contend that the petitioner is the landlord. The Court below rightly observed that the decree passed by the trial Court against the respondent-defendant was only on the ground of default and therefore the proposed amendment was wholly inconsequential. It is not disputed that the trial Court has decreed the suit for possession only on the ground of default within the meaning of section 12 of the Bombay Rent Act and not on the ground of disclaimer of title of the petitioner as owner of the said property. In the circumstances, in my view, the amendment sought for is wholly insignificant and would not cause any prejudice to the petitioner-landlord in any manner even if respondent-defendant is permitted to contend before the Appellate Court that the petitioner was the landlord in respect of suit property.

2. The apprehension expressed by the learned Counsel for the petitioner that; since the amendment has been allowed, the respondent would now contend that the matter should be remanded to the trial Court for retrial, is ill founded; as there would be no necessity for remanding the matter. On the other hand once the respondent admits that the petitioner is the landlord the only inquiry which will have to be made by the Appellate Court is whether the factum of service of the suit notice has been established and whether the respondent-tenant failed to pay the amount or raise dispute regarding standard rent within one month from the receipt of the suit notice. And if the said questions are answered against the respondent then the Court will have no option but to pass decree of eviction against the respondent. I have no hesitation in clarifying that the effect of allowing the amendment is limited: that the respondent has admitted ownership and title of the petitioner as landlord. Having done so, it is now imperative for the respondent to establish from the evidence already adduced on record before the Court that after the receipt of suit notice he tendered the rent as demanded in the said notice to the petitioner or raised dispute regarding standard rent within one month. This inquiry will have to be made by the Appellate Court before which the appeal is stated to be still pending.

3. For the aforesaid reasons writ petition is disposed of with direction to the Appellate Bench of the Small Cause Court, Bombay to decide the appeal expeditiously preferably within six months from the receipt of the writ of this Court, if the same is still pending. Parties to act on authenticated copy of the order.