Bombay High Court
Mr. Hemchand R. Shah vs Mr. Rameshchandra Govind ... on 29 February, 2016
Bench: R.M. Savant
(28)-WP-2084-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2084 OF 2016
Mr. Hemchand R. Shah ]
An adult, Indian Inhabitant, ]
Residing at Plot No.8, ]
Andheri Co-op. Hsg. Soc. Ltd., 03rd floor, ]
V. P. Road, Andheri (West), Mumbai-400 058 ].. Petitioner
Versus
1. Mr. Rameshchandra Govind Gavankar ]
An adult, Indian Inhabitant, ]
Presently occupying flat No.3, 02nd floor, ]
Govind Smruti, Ashok Chakravarty Road, ]
Kandivali (East), Mumbai-400 101. ]
2. Mr. Kedar Rameshchandra Gavankar ]
Flat No.3 and 4, 02nd floor, ]
Govind Smruti, Ashok Chakravarty Road, ]
Kandivali (East), Mumbai-400 101. ].. Respondents
Shri. P. N. Vira, for the Petitioner.
Shri. S. A. Abhyankar, for the Respondents.
CORAM : R.M. SAVANT, J.
DATE : 29th FEBRUARY 2016
ORAL JUDGMENT
1. Rule. Having regard to the nature of the challenge raised, the
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above Petition is taken up for hearing forthwith.
2. The writ jurisdiction of this court is invoked against the order
dated 04.12.2015 passed by the Competent Authority, by which order, the
application filed by the Petitioner herein who was the Applicant before the
Competent Authority in Case No.56 of 2010 came to be rejected.
3. It is not necessary to burden this order with unnecessary
details. Suffice it would be to state that the Petitioner herein is the licensor
of the premises in question and had entered into a Leave and Licence
agreement dated 28.07.2010 for a period from 05.04.2010 to 04.10.2010
i.e. six months with the Respondent. Since the Respondent did not vacate
the premises in question on the expiry of the licence period, the Petitioner
invoked Section 24 of the Maharashtra Rent Control Act, 1999 and filed
the said Case No.56 of 2010 seeking possession of the suit premises being
Flat No.4, Second Floor, Govind Smruti Building, Ashok Chakravarty Road,
Kandivali (East), Mumbai-400 0101. It seems that after the proceedings
were initiated an application came to be filed on behalf of the Respondent
by one Kedar Gavankar for appointing him as a guardian of the
Respondent No.1 in view of the fact that the Respondent No.1 herein was
a person unsound mind. The said application came to be allowed by the
Competent Authority by order dated 19.09.2011 and the Respondent No.2
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herein Kedar Gavankar was appointed as his guardian. The Petitioner i.e.
the Applicant in the said Case No.56 of 2010 pursuant to the said order
dated 19.09.2011 carried out amendment in the cause title by including
the name of the said guardian Kedar Gavankar as Respondent No.2. The
Respondent No.2 filed an application for dismissal of the said Case No.56
of 2010 in his capacity as guardian of the said Rameshchandra Gavankar.
The said application is yet undecided. However, the said Case No.56 of
2010 was decided by the Competent Authority and an order granting
possession to the Petitioner was passed on 25.06.2013. This resulted in the
Respondent No.2 Kedar Gavankar filing a Revision Application before the
Additional Commissioner, Konkan Division. The Additional Commissioner,
Konkan Division for the reasons mentioned in his order dated 16.04.2014
set aside the order passed by the Competent Authority in view of the fact
that there was a time lag of 18 months between the Competent Authority
hearing the arguments and passing of the order. On remand, the
Competent Authority is now ceased with the matter and as the impugned
order discloses the Respondent No.2 Kedar Gavankar has filed his written
arguments, whereas the Petitioner was required to file written arguments,
but filed the instant application for amendment of the said Case No.56 of
2010, in so far as the cause title is concerned, so as to sue the said
Rameshchandra Gavankar through his guardian Kedar Gavankar as also
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seeking the incorporation of paragraph 1(a) which is to the effect that on
account of the termination of the Leave and Licence agreement dated
28.07.2010 the Respondent is in unlawful use, occupation and possession
of the said flat and that the Respondent is represented by his son as his
next friend and guardian by virtue of the order dated 19.09.2011. The
said application was opposed to on behalf of the Respondent herein and
the principal ground of opposition is on the ground that delay that has
occasioned in carrying out the amendment in terms of the order dated
19.09.2011 passed by the Competent Authority appointing the said Kedar
Gavankar as the guardian and also on the ground that the matter is kept
for hearing and was adjourned for filing of the written argument of the
Petitioner. The Trial Court as indicated above, rejected the said application
by the impugned order. A reading of the impugned order discloses that it
is a non-speaking order and the application has been rejected only on the
ground that the same is belated.
4. The Learned Counsel appearing on behalf of the Petitioner
sought to reiterate the case of the Petitioner in the amendment application
and would submit that the amendment sought is to bring the cause title in
sync with the order dated 19.09.2011 passed by the Competent Authority
appointing the said Kedar Gavankar as the guardian of his father
Rameshchandra Gavankar. It was the submission of the Learned Counsel
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that through inadvertence the guardian has been shown as the
Respondent No.2 which has given rise to the filing of the application for
dismissal of the proceeding on the ground that the amendment has not
been properly carried out. It was the submission of the Learned Counsel
that the Respondents herein have also filed their reply in the said Case
No.56 of 2010 through Kedar Gavankar as the guardian of the said
Rameshchandra Gavankar. The Learned Counsel would contend that the
amendment sought is therefore formal in nature and would not cause any
prejudice to the other side.
5. Per contra, the Learned Counsel appearing on behalf of the
Respondent i.e. guardian would contend that though the order has been
passed as long back as in the year 2011, the amendment was not carried
out in terms of the said order dated 19.09.2011 and an amendment
application has been filed at this length of time after the Respondent i.e.
Respondent in the application has filed his written arguments and the
matter was kept for the filing of the written arguments of the Petitioner.
The Learned Counsel sought to place reliance on the judgment of the Apex
Court reported in AIR 1974 SC 130 in the matter of Dilbagh Rai Jerry
Vs. Union of India and others, wherein, the Apex Court has mentioned
the consequence of not carrying out amendment within time in terms of
the order allowing the application. It was also the submission of the
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Learned Counsel that proceeding filed against the person of unsound mind
is a nullity and therefore since the said Rameshchandra Gavankar is sued
in his individual capacity as is can be seen from cause title, the application
being Case No.56 of 2010 is a nullity and not maintainable.
6. Having heard the Learned Counsel for the parties. The
question is whether the Petitioner herein is entitled to amend the cause
title of the application being Case No.56 of 2010 and also incorporation of
paragraph 1(a). In the said context, it is required to be noted that the
cause for moving the said application being Case No.56 of 2010 is the fact
that though the licence period is over, the Respondent has not vacated the
premises in question and continues to occupy the same. The remedy by
way of Section 24 of the said Act has been specially provided in cases
where the relationship is that of licensor and licensee. In so far as the said
application filed under Section 24 is concerned, the proceedings are
regulated under Section 43 of the said Act. The chapter heading wherein
Section 43 appears discloses that such proceedings are in the nature of
summary proceedings as the legislature deemed it fit to provide a speedy
remedy against the licensees who have overstayed the licence period. In
the instant case, as indicated above, the Respondent Kedar Gavankar
himself filed an application before the Competent Authority as guardian of
his father Rameshchandra Gavankar. Suffice it would be to state that the
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said application came to be allowed by the Competent Authority by order
dated 19.09.2011 and the said Kedar Gavankar was appointed as the
guardian. However, unfortunately whilst carrying out the amendment the
name of guardian was shown as Respondent No.2 rather than being
shown as the guardian of the Rameshchandra Gavankar. Hence, in so far
as the order dated 19.09.2011 is concerned, it is not as if no steps were
taken pursuant to the order dated 19.09.2011 for arraying the name of
Kedar Gavankar as the guardian. However, inadvertently the said Kedar
Gavankar was arrayed as the Respondent No.2 when what was required to
sue the said Rameshchandra Gavankar through his guardian Kedar
Gavankar, that is what exactly the Petitioner is now seeking to do by
seeking amendment in the said application being Case No.56 of 2010. As
indicated above, the principal ground on which the application is opposed
to is on the ground of delay. It is well settled that an amendment which is
required for a complete and effectual adjudication of the proceedings is
required to be granted and if the said principle is to be applied then in the
instant case, the Competent Authority can be said to have erred in
rejecting the application only on the ground of delay. In so far as the delay
is concerned, though it is trite that there is no limitation prescribed for
carrying out an amendment which is required to be carried out within the
time frame within which the Authority directs the amendment to be
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carried out or within a reasonable time. In the instant case, as indicated
above, it is not as if the amendment was not carried out pursuant to the
order dated 19.09.2011 the amendment was carried out but inadvertently
or erroneously the guardian was shown as the Respondent No.2. The
judgment of the Apex Court in the matter of Dilbagh Rai Jerry's case
(supra), would therefore not aid the Respondents herein having regard to
the facts of the present case.
7.
It is also required to be noted that no application for seeking
leave to defend has been filed by the Respondents herein, though such a
course of action is mandated by Section 43 of the said Act. Hence, without
seeking such leave to defend, whether an application for dismissal of the
main application being Case No.56 of 2010 could have been filed,
therefore, begs an answer. Be that as it may, in the facts of the present
case, wherein this Court has come to a conclusion that the non-suing of
the original Defendant Rameshchandra Gavankar through his guardian is
only a technical flaw and the amendment sought is only formal, as the
said Kedar Gavankar has already been shown as Respondent No.2, the
impugned order dated 04.12.2015 would have to be quashed and set aside
and is accordingly quashed and set aside. The application would stand
allowed. The Petitioner herein is directed to carry out amendment in the
cause title of the said Case No.56 of 2010 within two weeks from date.
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The Competent Authority is directed to proceed thereafter from the stage
at which the proceedings were and decide the said application as per it's
convenience. The Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute with parties to bear their respective costs.
[R.M. SAVANT, J]
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