Abeda Iqbal Patel vs Cormorant Investment Pvt.Ltd
2008 Latest Caselaw 111 Bom

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 sm            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO. 5435 OF 2008




                                                                          
      Abeda Iqbal Patel
      R/o. Room No.12,
      Ground Floor, Gool Mansion,




                                                  
      6, Homji Street, Fort,
      Mumbai - 400 001.                                ....Petitioner.
                                                       (Orig.Defendant)

                Vs.




                                                 
      Cormorant Investment Pvt.Ltd.
      A company incorporated under the
      Companies Act, 1956 having its




                                       
      registered office at C/o. Prime
      Investrade Limited, Gool Mansion,
      2nd Floor, 6 Homji Street,
                         
      Fort, Mumbai-400 001.                             ....Respondent.
                                                        (Orig.Plaintiff)
                        
      Ms.Yasmin E.Tavaria for the Petitioner.

      Mr.Haresh Mansukhani for the Respondent.


                              CORAM : ANOOP V.MOHTA, J.
        


                              DATED : 10th DECEMBER, 2008.
     



      JUDGMENT:

The Petitioner- Original Defendant has

challenged the impugned order dated 7th July, 2008

passed by the Appellate Bench of Small Causes Court at

Bombay, whereby, against an order in interim notice

2014/2007 dated 08/02/2008, passed by the learned Trial

Judge, has allowed an amendment application to the

plaint by holding that the Revision is tenable.

( 2 )

2. The application for amendment to give better

particulars of subsequent developments in consonance

with the pleadings already made in the plaint was moved

by the Respondent-Plaintiff. The same was rejected by

holding that it is inconsistent and contrary to the

averments already made in the plaint and it would cause

prejudice and injustice to the other side. The

pleadings are completed and the issues are framed. But,

no affidavit in lieu of examination-in-chief filed, when

the present

Respondent's-

application for amendment was moved.

Plaintiff's Revision Application against The

the said order was opposed by contending that the

Revision under such interlocutory order is not tenable

and also on the ground that it substantially affects the

rights of the Plaintiff.

3. The relevant Section/portion of the Maharashtra Rent

Control Act, 1999 (for short, "Maharashtra Rent Act") is

as under:-

Section 34 (4):- Where no appeal lies under this section from a decree or order in

any suit or proceeding in Brihan Mumbai, the Bench of two Judges specified in clause (a) of sub-section (1) and elsewhere, the District Court, may, for the purpose of satisfying itself that the decree or order made was according to law, call for the

( 3 )

case in which such decree or order was made and the bench or Court aforesaid or the District Judge or any Judge to whom the case may be referred by the

District Judge, shall pass such order with respect thereto as it or he thinks fit."

4. Section 29(3) of the Bombay Rents, Hotel and Lodging

House Rates (Control) Act, 1947 (for short, "Bombay Rent

Act") read thus:-

Section 29 (3):-

(3) Where no appeal lies under

this section from a decree or order in any suit or proceeding in Greater Bombay the bench to two Judge

specified in clause (a) of sub-section (1) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made

was according to law, call for the case in which such decree or order was made and (the bench or Court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge, shall) pass such order

with respect thereto as (it or he thinks fit.)

5. By the impugned order it is held that the Revision

is tenable and thereby allowed the amendment application

filed by the Respondent-Plaintiff. Therefore, the

present Writ Petition by placing strong reliance mainly

on the judgment of this Court in Writ Petition No.258 of

2007, dated 5th August, 2008. (M/s. J.M.Constructions

Vs. Dr.Rustom P.Patel & Ors.) (S.B) and Sukhdev Prasad

Raghubir Vs. Rambhujarat Kshamapati @ Rambhujarat

( 4 )

Chhampati, reported in 1982 (i) Bom. C.R. 832, (D.B.).

In these two judgments (Supra) the orders of amendment

to the pleadings were involved. Considering the facts

and circumstances of the case in both these judgments,

it is held that the Revision against the order of

amendment being interlocutory and procedural in nature,

not maintainable, but at the same stroke it is clearly

observed in both these judgments that order which are

substantially affecting the rights of the parties can be

challenged in Revision.

6.

There are other judgments of this Court whereby, it

has been held that a revision against an interlocutory

order when the substantial rights are involved, and when

appeal is not maintainable or barred, is maintainable.

Even prior to this in Sayarabi Sayyad Abdul Ajij

(Deceased) through L.Rs. Vs. Shri Abdul Rashid Abdul

Majid, 2004 (4) All M.R. 581 (S.B.), considering same

provisions of Bombay Rent Act and the order allowing

amendment, held that if such order affects substantial

rights of parties, is not merely procedural order, the

Revision against such order is maintainable.

7. The Supreme Court in Dondapati Narayan Reddy Vs.

Duggireddy Venkatanarayana Reddy, (2001) 8 S.C.C. 115

( 5 )

has observed:-

. "The amendment should, generally, be

allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against

the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time. Amendment may also be refused, if such a prayer made

separately, is shown to be barred by time. Neither the trial court nor the High Court has found the existence of any of the circumstances justifying the rejection of the prayer for amendment

of the written statement. Whether or not the amendment is allowed, the trial court is otherwise obliged to decide

the validity of the disputed will which is the basis of the suit filed by the plaintiff. We are of the opinion that the courts below."

8. In Rajesh Kumar Aggarwal Vs. K.K.Modi, (2006) 4

S.C.C. 385, the Supreme Court has observed as under:-

"15. The object of the rule is that the

courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the

parties provided it does not cause injustice or prejudice to the other side.

16. Order 6 Rule 17 consists of two parts.

Whereas the first part is discretionary

(may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

( 6 )

17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been

granted because the basic structure of the suit has not changed and that there was merely change in the nature of

relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be

incorporated in the pending suit.

20. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was

acting mala fide. There is a plethora of precedents pertaining to the grant of refusal of permission for amendment of

pleadings.

rendered by The this various Court decisions and the proposition laid down therein are widely known. This Court has consistently held

that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice."

9. In Baldev Singh Vs. Manohar Singh, (2006) 6 S.C.C.

198, 198 the Apex Court has observed:-

. "Court should be extremely liberal for granting the prayers for amendment of

pleadings unless serious injustice or irreparable loss is caused to the other side".

10. In Usha Balasaheb Swami Vs. Kiran Appaso Swami,

(2007) 5 S.C.C. 602, the Apex Court has further

elaborated the General principle revolving around Order

6 Rule 17 and Order 12 Rule 6 of C.P.C.with regard to

( 7 )

the plaint and written statement and the difference in

principle applicable to them. The relevant observations

are as under:-

"19. It is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that

amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles

relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or

altering inconsistent a defence pleas in or the statement would not be objectionable taking written

while adding, altering or substituting a

new cause of action in the plaint may be objectionable.

22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the courts would be

more liberal in allowing than that of a plaint as the question of prejudice

would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be

allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement."

11. In Andhra Bank Vs. ABN Amro Bank N.V. and Ors.

(2007) 6 SCC 167, the Apex Court has observed that the

additional ground of defence in amendment of written

statement is permissible and it is accordingly granted.

( 8 )

12. Recently, in Gautam Sarup Vs. Leela Jetly & Ors.

(2008) 7 S.C.C., 85 while considering Order 6 Rule 17,

Order 8 Rule 5, Order 12 Rule 6 of C.P.C. and Section

58 of the Evidence Act, dealing with the aspect of

written statement, the Supreme Court has observed that -

. "The court is required to apply its mind on several factors including viz. whether by reason of such amendment the claimant intends to resile from an

express admission made by him. In such an events the application for amendment may not be allowed." (Union of India Vs.

Pramod Gupta, (2005) 12 SCC 1). It is concluded by observing as under:-

"28. What, therefore, emerges from the

discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would

depend upon the nature and character thereof. It may be that a defendant is

entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."

29. An explanation can be offered provided

there is any scope therefor. A clarification may be made where the same is needed.

30. We will assume that despite the amendments made by the Code of Civil

Procedure (Amendment) Act, 1976, amendment of pleadings being procedural in nature, the same should be liberally granted but as in all other cases while exercising discretion by a court of law, the same shall be done judiciously."

( 9 )

13. In North Eastern Railway Administration, Gorakhpur

vs. Bhagwan Das (Dead) by LRs., (2008) 8 SCC 511, the

Apex Court has reiterated in para 16 as under:

"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled.

Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v.Kalgonda Shidgonda Patil (AIR 1957 SC 363), which still holds the field, it was held that all

amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and

(b) of being necessary for the purpose of determining controversy the real between questions the in parties.

Amendments should be refused only where the

other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal

Kalwar, (1990) 1 SCC 166."

14. The Court need to consider various facets of CPC

including Order 6 Rule 17, Order 12 Rule 6, Order 1 Rule

10 readwith Section 151 of the C.P.C., the stage of the

trial, due diligence/reason and the Judicial exercise of

discretion and facts and circumstances of the case.

(Ajendraprasadji N.Pandey & Anr. Vs. Swami

Keshavprakeshdasji N. and Ors.(2006) 12 S.C.C. 1.)

15. In Shanti Vs. Homes Ins. Co. A 1974 S.C. page

( 10 )

1719, 1719 the Apex Court has observed that "the amendment

order is not purely of discretion. Even with regard to

discretionary orders the Appellate Court can interfere

where the order is insupportable in law or is unjust.

                                                 
     16.      In Chander Kanta Bansal Vs.         Rajinder Singh Anand,




                                                
     (2008)        5   S.C.C.     117,
                                  117 the Supreme Court         has      observed

     that:-




                                        

"15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the

proceeding, the proviso imposes certain restrictions.

after It makes it clear that the commencement of trial, no application for amendment shall be

allowed. However, if it is established that in spirt of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.

18. As rightly referred to by the High Court

in Union of India Vs. Pramod Gupta (2005) 12 SCC 1, this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an

application for amendment of the pleadings."

17. What is boiled out from all this is that to grant

or reject an amendment of plaint and or written

statement is important facet of proper adjudication of

the dispute between the parties. Therefore, the Court

needs to consider various aspects as referred above

( 11 )

while granting and/ or refusing the amendment

application. Therefore, in a given case if Court in

spite of all this reject such application, the Appellate

Court and or the Revisional Court, needs to consider

right or wrong exercise of discretion by the Court

below. Any party, therefore, if aggrieved by such order

is entitled to challenge the same, being an order

against which appeal is not available, under the Act and

therefore, only remedy is the Revision. Therefore, even

if it is procedural order, still if the court satisfied

that

under Section

it "was not made according to law" as contemplated

34 (4) of the Maharashtra Rent Act and

even Section 29(4) of the Bombay Rent Act, the

interference is a must. It can be done only when the

revisional court re-considers the same and pass order

accordingly.

18. The Sections in question are wider than the General

Revisional Procedure of CPC. The requirement is; if

any appeal is not available and, if order is not in

accordance with law and, it affects the substantial

rights of the parties, I see there is no reason that,

against such order, the remedy is available to the

aggrieved parties is to file Revision. There is no bar

created, under the Maharashtra Rent Act.

( 12 )

19. It is pertinent to reproduce the observations of

the Supreme Court in Gurdev Kaur & ors. v. Kaki &

ors., (2007) 1 SCC 546 :

"2. Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice

administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos."

20. In a given case, any such order which is contrary

to the well settled principle of law and or not in

accordance with ig law, would definitely affect the

substantial rights of the parties. Therefore, if any

party preferred a Revision application and placed on

record the Apex Court decisions and High Court decisions

with this regard, granting or not granting amendment,

the Revisional court needs to exercise its jurisdiction

in accordance with law. That can be done only after

hearing both the parties in Revision. Even though, it

is against the so called interlocutory or procedural

order. In my view, the Revisional court has no choice

but to entertain such Revision and passed appropriate

order, considering the facts and circumstances of the

case and prevailing law on the subject.

21. Another important facet observed by the Apex Court

( 13 )

(G.L.Vijain Vs. K.Shankar (2006) 13 S.C.C. 136) in

following paragraphs is also substantially affects the

reasoning given in Sukhadev and J.M.Constructions

(Supra):-

(Supra)

"15. There is furthermore no dispute that the High Court can exercise its inherent jurisdiction in appropriate cases. The

revisional jurisdiction, however, in effect and substance is an appellate jurisdiction.

16. In Narinder Mohan Arya Vs. United India

Insurance Co. Ltd. (2006) 4 SCC 713, this Court observed : (SCC P. 730, para

47)

. "47.

A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. (See Shankar Ramchandra

Abhyankar V. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74 and Nalakath Sainuddin V. Koorikadan Sulaiman, (2002) 6 SCC 1.

22. Therefore, the revisional Court, need to exercise

its jurisdiction if the conditions precedent laid down

in Section 34(4) of the Maharashtra Rent Act are

fulfilled. The limitation of power as contained in

Section 115 of CPC is, therefore, not applicable.

(G.L.Vijain Vs. K.Shankar, (2006) 13 Supreme Court

Cases 136).

23. The present Petition is under Article 227 of the

Constitution of India filed by the petitioner against

the impugned order whereby the Plaintiffs amendment

( 14 )

application has been granted by considering the various

aspect on merit, as well as, on law and permitted to

amend the said plaint by observing in para 17 as under:-

"17. The learned Advocate for the Applicant further referred to the judgment of Supreme Court 1996(2) Supreme Court cases page 25 in the matter of G.Nagamma and another V/s. Siromanamma

and another, wherein their Lordship observed that, even by amending plaint, party can seek relief alternatively also. We find ratio of those authorities are clearly speaking about

the legal position. It is a fact that, in the Trial Court Applicant has sought amendment just to provide better

particulars that too with pleadings and it is required for deciding the suit which is necessary to be added. It is not causing any prejudice to the other

side, but the learned Trial Judge alleged misread the legal position and misdirected in appreciating the factual aspect. In fact Applicant is not raising any alternative or inconsistent plea. There is no any change of

ground. A simple contentions is being added that too consistent with the

original pleadings about the bonafide requirement, showing the appointment of staff members and suit premises required for that purpose. We find the findings arrived by the Trial Court is

not according to law. Hence, order of Trial Court is require to be set aside by allowing Revision Application. Hence, order.

. The impugned order is within the framework of law and

the record. However, all defence pleas/points are kept

open.

( 15 )

24. Resultantly, I am of the view that:-

a) The Section 34 of the Maharashtra Rent Act

gives/ provides wider power to the

Revisional Court than Section 115 of

C.P.C..

b) Any order, if it is not in accordance with

law, and contrary to law or settled

principle of law or perverse, but not

appealable, a Revision is maintainable.

c) The phrase "in accordance with law" has

various facets. It is in use in every

field of law. It covers various doctrines

including the Doctrine of Binding

Precedent, the Doctrine of Natural Justice

and the practice and procedure of law

specially when it affects the substantial

rights of the parties. Therefore, any

judgment or order need to be in accordance

with law, whether interlocutory or final,

if not then there is no bar, the Revision

is maintainable, even against such order.

( 16 )

25. In my view, considering the various Supreme Court

Judgments and even the Judgments of this Court as

referred above, Sayarabi (Supra) and Pacific Engineering

Co. Pvt. Ltd. Vs. East India Hotels Ltd., 2005(1)

Bom.C.R.427, such Revision is maintainable. The

submission that matter be referred to larger bench is

also rejected in view of the Supreme Court Judgments and

High Court Judgments referred above.

26. The petition is therefore, dismissed. No order as

to costs.

27. The learned counsel appearing for the petitioner

seeks stay of the order. In view of the above reasons,

the prayer for stay is rejected.

28. The petitioner/parties to take steps to carry out

the amendment within six weeks. The consequential

amendment is also permitted.

                                                  ( ANOOP V.           MOHTA, J.)