Ashok Kumar S/O Bulchand Kaurani ... vs Shankar S/O Vishnu Raverkar And ...
2007 Latest Caselaw 802 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This petition takes exception to the judgment and order passed by the learned District Judge, Jalgaon below Exhibit-24 in Regular Civil Appeal No. 100 of 2000.

2. The petitioners were defendant Nos. 8 to 16 in Regular Civil Suit No. 89 of 2000 and respondent Nos. 1 to 7 were defendant Nos. 1 to 7. The respondent No. 1, in this petition, was original plaintiff in Regular Civil Suit No. 89 of 2000. Parties hereinafter are referred to their status as plaintiff and defendants respectively.

3. The plaintiff has described the suit property in Regular Civil Suit No. 89 of 2000 as house property City Survey No. 2268 having two storeyed building. Boundaries have been given in para No. 1 of the plaint. It is also pleaded that City Survey No. 2268/A is also the subject-matter of the suit. On these two City Survey 2268 and 2268/A two storeyed building is in existence. This suit property is transferred by the defendant Nos. 1 to 7 in favour of defendant Nos. 8 to 16 by registered sale deed on 5th January, 2000. On these two city survey numbers, one building has been constructed. Western side of this building i.e. City Survey No. 2268/A there is two storeyed building and more specifically three rooms premises, towards western southern comer on the second floor is the suit property described in para 1 of the plaint, According to the plaintiffs, monthly rent of this property was to the tune of Rs. 37/- per month since 4th February, 1965.

4. In Regular Civil Suit No. 89 of 2000 relief of declaration that the plaintiff is tenant of the suit property was sought for. Consequential relief of perpetual injunction that the defendants shall not change the nature of the property, was also sought for. This suit was filed on 7th March, 2000. In response to the suit, written statement was filed, issues were framed and after recording evidence of the parties, the learned Civil Judge, Junior Division, Jalgaon passed a decree of dismissal of the suit on 4th March, 2002.

Decree passed in Regular Civil Suit No. 89 of 2000 is challenged by the plaintiff by filing Regular Civil Appeal No. 100 of 2002. During the pendency of this appeal, application under Order VI, Rule 17 of the Code of Civil Procedure seems to have been filed by the plaintiff on 22nd July, 2003, below Exhibit-24. This application, after hearing the parties, is allowed by the first Appellate Court by the judgment and order dated 3rd March, 2004 which is impugned in this writ petition.

5. Learned Counsel for the petitioners submits that the suit property, earlier, was owned by defendant Nos. 1 to 7. Plaintiff, in this suit, had earlier filed Regular Civil Suit No. 390 of 1999 in the Court of learned Civil Judge, Senior Division at Jalgaon for the similar relief. This suit was filed on 27th October, 1999 and came to be withdrawn by the present plaintiff, who was also plaintiff in that suit, on 18th January, 2000. Advocate for the petitioners has also invited my attention to a fact that the defendant Nos. 8 to 16 have purchased the suit property by registered sale deed dated 5th January, 2000 from erstwhile owners i.e. defendant Nos. 1 to 7, in this suit. Withdrawal of Regular Civil Suit No. 390 of 1999 is dated 18th January, 2000. On this premise, the plaintiff sought withdrawal of the earlier suit and filed present Regular Civil Suit No. 89 of 2000 on 7th March, 2000. Order of withdrawal of Regular Civil Suit No. 390 of 1999 is not available on record, in this writ petition.

6. With the assistance of learned Counsel for the petitioners, I have perused the pleadings in Regular Civil Suit No. 89 of 2000. In para 1 of the suit, transfer of suit property by defendant Nos. 1 to 7 to defendant Nos. 8 to 16 on 5th January, 2000, for consideration of Rs. 12,00,000/- is referred. However, it is pleaded that on both these City Survey Numbers i.e. 2268 and 2268/A, two storeyed building is in existence. The description of the suit property, given in this para 1, is tenement of three rooms, on second floor of the building, and to the western southern portion of the said building. Application for amendment Exhibit-24 is filed in the first Appellate Court. Since the suit is filed on 7th March, 2000 the amended provisions of Order VI, Rule 17, which came into force on 1st July, 2002, is not applicable. Pleading in accordance with the earlier provision laid down under Order VI, Rule 17 could have been amended at any stage of the proceedings. Application Exhibit-24, in this premise, could be considered by the first Appellate Court.

7. Learned counsel for the petitioner has invited my attention to the judgment of the trial Court in Regular Civil Suit No. 89 of 2000. About nine issues were framed by the trial Court and Issue No. 1 was in respect of alleged tenancy of the plaintiff since 4th February, 1965 as well as tenancy of the defendant Nos. 8 to 16 since 5th January, 2000. The trial Court, while considering Issue Nos. 1, 2 and 3, referred the admission of the plaintiff as "this suit building was in dilapidated condition and some of its portion was fallen, staircase was damaged and the suit premises was unfit for residence and hence he went to his son at Had Vithal Nagar by removing the household articles from the suit premises". Another admission of the plaintiff, noted by the learned Judge, in the same paragraph, is that "the suit building of the suit premises is not in any way in existence today." The trial Court in para 9 observed that "in the instant case no amendment is made in the plaint though the suit building was destroyed and not in existence".

8. The learned Counsel for the petitioner submits that the suit property, which was the subject-matter of Regular Civil Suit No. 390 of 1999, remained same in Regular Civil Suit No. 89 of 2000. The plaintiff claims tenancy to the suit property, which is described in para 1 of Regular Civil Suit No. 89 of 2000. The application for amendment, during the pendency of appeal, below Exhibit-24, seeks amendment only in para Nos. 16(B) and 16(C) by deletion of earlier prayers and substitution of these prayers, in this amendment application. It is pointed out, however, that the description of the suit property is not sought to be amended. From the material on record, it appears that, the plaintiff has given some admissions regarding non-existence of building, as a whole. The learned Judge, while deciding the suit, appreciated the evidence and dismissed the suit. First appeal i.e. Regular Civil Appeal No. 100 of 2002 is filed on 24th April, 2002. This application for amendment seems to have been moved on 22nd July, 2003. Rights accrued in favour of the defendants cannot be taken away by subsequent amendment. Admissions, secured on behalf of the defendants, in the evidence of plaintiff, cannot be permitted to be withdrawn or destroyed by subsequent amendment. Cause of action, in case of amendment, is also important. The suit, which was filed by the plaintiff on 7th March, 2000, was against 16 persons i.e. the erstwhile owners and subsequent owners. The construction and existence of multi-storeyed building, at the time of filing of application Exhibit-24 is pleaded. In this application, the knowledge pleaded by the plaintiff is from October, 2002. Cause of action mentioned in Regular Civil Suit No. 89 of 2000 and more specifically in para 10, seems to have occurred on 24th November, 1997 when defendant No. 1 locked the suit premises. It also arose, according to the plaintiff, on 10th September, 1999. In para 11 of the plaint, transaction in favour of defendant Nos. 8 to 16 is referred. From the material on record, it appears that the earlier building was not in existence even at the time of recording of the evidence. The learned trial Court has also observed that no endeavour is taken by the plaintiff to seek amendment to the suit. From all these circumstances, in my view, right accrued in favour of the defendants cannot be taken away by such amendment. The grounds on which the suit is dismissed by the trial Court, cannot be permitted to be substituted by way of amendment during the pendency of the first appeal.

9. I have perused the order passed by the first Appellate Court while allowing the amendment application. In para 5 of the order, the learned first Appellate Court, observed that amendment is regarding the subsequent events, clearly shows that the applicant could not have raised the matter before the commencement of the trial because the subsequent event is after filing of the suit. In the foregoing paragraphs, I have referred to the date of filing of Regular Civil Suit No. 89 of 2000 on 7th March, 2000.1 have also referred pleadings in the suit and observation of the trial Court regarding admissions of the plaintiff. It is difficult to subscribe to the view taken by the first Appellate Court while allowing the amendment sought for by the plaintiff. In my view, order passed by the first Appellate Court, in the facts and circumstances of the present case, is perverse and has to be quashed and set aside. However, it is made clear that the first Appellate Court shall independently consider the merits of the appeal, pending before it, and after hearing the parties, shall dispose of the appeal.

10. Writ petition is partly allowed. The judgment and order passed by the first Appellate Court below Exhibit-24 in Regular Civil Appeal No. 100 of 2002 is quashed and set aside. Application Exhibit-24, filed by the plaintiff, seeking amendment, stands dismissed. Rule made absolute in the above terms. No costs.

In view of final disposal of the writ petition, Civil Application No. 9968 of 2005, for vacating interim relief, stands disposed of.