Aarti Sanjeev Huzurbazar vs Gopal Madanlal Agrawal
2021 Latest Caselaw 6570 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD
                         WRIT PETITION NO. 6846 OF 2018

 Aarti Sanjeev Huzurbazar                                ... Petitioner
       Versus
 Gopal Madanlal Agrawal                                  ... Respondent
                                    WITH
                        WRIT PETITION NO. 10381 OF 2018
 Aarti Sanjeev Huzurbazar                      ... Petitioner
       Versus
 Varun Nanakram Ravlani and another            ... Respondents
                                    ....
 Mr. Sushant V. Dixit, Advocate for petitioner
 Mr. S. H. Jagiasi, Advocate for respondents
                                    ....
                               CORAM : R. G. AVACHAT, J.

RESERVED ON : 09th MARCH, 2021 PRONOUNCED ON : 21st APRIL, 2021

O R D E R :-

. Both these writ petitions are being decided by this order,

since common questions of fact and law arise therein.

2. The petitioner in both these petitions is the plaintiff in

Regular Civil Suit No.401 of 2014 and Regular Civil Suit No.349 of

2015 pending before the Court of Civil Judge, Junior Division,

Jalgaon. Both the suits have been instituted for eviction of the

respondents (tenants) herein and possession of the premises on the

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ground of reasonable and bona-fide requirement. The

respondent/tenant (Writ Petition No. 6846 of 2018) moved

application Exh-49 for amendment of the written statement. The

said application came to be allowed vide order dated 01.01.2018.

This order is under challenge in Writ Petition No.6846 of 2018.

Thereafter, respondents/tenants (Writ Petition No.10381 of 2018)

moved application Exh.61 for amendment of the written statement.

The said application came to be allowed vide order dated

26.06.2018. This order is under challenge in Writ Petition No.10381

of 2018.

3. Shri Sushant V. Dixit, learned Advocate for the petitioner

would submit that hearing of the suits had already been commenced.

The respondents/tenants admitted the petitioner to be the

owner/landlady of the suit premises. The applications for the

amendment were moved with a view to delay the hearing of the

suits. The applications for amendment were silent to demonstrate as

to when the respondents got knowledge of the facts sought to be

introduced by proposed amendment. The applications were also

silent to set out grounds as to how the proposed amendments were

necessary for deciding the real questions in controversy. The civil

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Court has no jurisdiction to entertain to decide as to whether the

property is a trust property. The jurisdiction vests with the

authorities under the Maharashtra Public Trust Act. There is non

compliance of the proviso to Order 6 Rule 17 of the Code of Civil

Procedure (CPC). Suits under the Rent Act are required to be

decided within time frame of twelve months. By the amendment,

admission given in the written statement would get withdrawn. The

trial Court in the given facts and circumstances of the case ought not

to have allowed the applications Exh-49 and 61.

4. Shri S. H. Jagiasi, learned Advocate appearing for the

respondents, would on the other hand submit that the trial Court has

judiciously exercised discretion in allowing the applications. The

facts sought to be introduced in the pleadings, came to the

knowledge of the respondents only after the petitioner filed her

affidavit of evidence in both the suits. According to the learned

Advocate, prayer for amendment of the written statement is to be

liberally construed as against the prayer for amendment of the

plaint. According to the learned Advocate, no admission made in the

written statement has been sought to be withdrawn by the proposed

amendment.

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 5.               Order 6 Rule 17 of CPC, reads thus:

"17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

The aforesaid provision was the subject of interpretation

in the case of Vidyabai and others vs Padmalatha and another -

2009(4) Mh.L.J. 30. The Apex Court held thus:

"The proviso to Order 6, Rule 17 of Civil Procedure Code is couched in a mandatory form. The Court's jurisdiction to allow an application for amendment is taken away unless the condition precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Only if such a condition is fulfilled, the amendment is to be allowed."

Relying on the aforesaid judgment of the Apex

Court, this Court in the case of Prabhakar Prabhakar Sadashiv

Gokhale and another vs Ramesh Shankar Ladkat and others -

2017(4) Mh.L.J 634 has observed thus:

"7. Order VI, Rule 17 clearly stipulates that the Court may at any stage of the proceedings allow either party to alter or amend these pleadings in such manner and on such terms as may be just, and all such amendments shall

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be made as may be necessary for the purpose of determining the real question in controversy between the parties. In 2002, a proviso was added to Rule 17 which clearly states that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party seeking amendment could not have raised the matter before the commencement of trial. What the proviso clearly stipulates and what the Legislature clearly intended was to curtail the discretion that was granted to the Court to grant the amendment in the main part of the Rule. The effect of the proviso is clearly mandatory. It clearly stipulates that no application for amendment "shall" be allowed after the trial had commenced unless the condition as set out in the said proviso is fulfilled. In other words, what the proviso stipulates is that the Court is barred from allowing any amendment after the trial has commenced unless the condition set out in Order VI, Rule 17 is satisfied."

6. While in the case of M/s Shree Sagar Stevedores

and others vs M/s Shri Kaustub Shipping Pvt. Ltd. -2009 (3) B

J 731, it has been observed thus:

"10. In my view, the said judgments have no application in the fact situation of the present case. The Defendants in the instant case are seeking to withdraw the acceptance of the fact that the Defendant No.3 was a partner of the said firm and on the said basis are seeking to introduce amendments in paras 7 and 9 whereby a new defence is now sought to be taken. The sum and substance is that the Defenandt No.3 could not have negotiated with the Plaintiff on behalf of the Defendant No.1 as he was not a partner of the Defendant No.1, in my view if such an amendment is allowed, the same would be prejudicial to the Plaintiffs. Another aspect that is required to be considered is that the said stand taken up by the Defendants is after a period of seven years and is based on a certificate issued by the Register of Firm, Bavnagar, in

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September, 2009, the question that arises is if the Defendant No.3 was not a partner of the Defendant No.1, how come the certificate was obtained only in September, 2009 and why did the Petitioners in the written statement as filed in the year 2002 accepted the position that the Defendant No.3 was a partner. The said fact create a suspicion as regards the claim of the Petitioners on the basis of the said certificate."

7. I have also perused the other citations relied on by

the learned Advocate for the petitioner to find them to be

distinguishable on facts of the present matters. The other

authorities relied, are as under:

(i) Shalini Vyankatesh Puntambekar vs Jayaprakash R.

Agarwal - 2002(10 Mh.L.J. 925;

(ii) Anil s/o Vishwanath Jadhav vs Pankaj s/o Indrajeet Bassi - 2009(3) B C J 352.

8. The petitioner/plaintiff instituted the suits for

eviction of the respondents from the tenented premises (shop

blocks). It is the case of the petitioner that a house property

bearing CTS No.2114 is the two storey building. The ground

floor thereof has come to her share. There are in all 18 shop

blocks. Block No.10 and Block No.3 are in possession of the

respondents as tenants. The shop blocks (suit premises) were

given on rent to the respondents by 'Acharya Vaidyakiya

Pratishthan', Jalgaon. The father of the petitioner got the entire

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house property (CTS No.2114) back from the 'Acharya

Vaidyakiya Pratishthan', Jalgaon. The petitioner and her

husband are medical practitioners. They required the suit

premises for their own occupation and running of

dispensary/clinic. The respondents in their written statement,

no doubt, admitted the suit premises to have been taken back by

the father of the petitioner and they had been paying him the

rent and on demise to the petitioner herein.

9. The respondent in Writ Petition No. 6846 of 2018

came with the application (Exh-49) for amendment of the

written statement. The sum and substance of the matter sought

to be introduced in the written statement is as under:

The suit premises were owned by ' Acharya

Vaidyakiya Pratishthan', Jalgaon, a charitable trust. The trust

had let out the suit premises to the respondents. In the official

record of the trust maintained in the office of the Assistant

Charity Commissioner, the suit premises had never been shown

to have had belonged to the trust. The respondents made

inquiry with the office of the Assistant Charity Commissioner

and obtained certified copy on 13.07.2017. It is only on receipt

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of the certified copy, the aforesaid facts came to the knowledge

of the respondents.

The father of the petitioner had filed Special Civil

Suit No.177 of 2013 for partition and separate possession of the

entire property in CTS No.2114. It was a collusive suit. The

compromise decree came to be passed therein.

When the entire property initially belonged to the

public trust, it could not have been transferred in favour of the

father of the petitioner without permission and without

executing a registered conveyance in that regard. The premises

in possession of the petitioner are quite sufficient to cater her

needs. If the suits are decreed, the respondents would suffer

greater hardship.

10. The petitioner filed her reply to the application

Exh.49 before the trial Court (Exh.51). Close reading of the said

reply would indicate that the application for amendment was

opposed only on the ground of having been preferred with a

view to delay the hearing of the suit. It was specifically averred

in the reply Exh.51 that the respondent can in his evidence

introduce the facts whichever he wanted to introduce by the

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proposed amendment. It is needless to mention that evidence

without foundation in the pleadings need to be ignored. In the

reply to the application for amendment, it had not been alleged

that the respondent was in the know of these facts well before

the issues were framed and he could have amended the written

statement long before, the application Exh.49 was moved. In

sum and substance, the application for amendment (Exh.49)

was resisted only on the ground of delay. In the case of B. K. N.

Narayan Pillai vs P. Pillai and Ors - MANU/SC/0775/1999 , the

Apex Court has observed thus:

"Order 6 Rule 17 of CPC, 1908 - whether prolonged delay is ground of rejection of amendment to pleadings where other party could be compensated by costs - no amendment should be allowed which defeats legal right accruing to opposite party on account of lapse of time - proposed amendments should not cause such prejudice to other side which cannot be compensated by costs - mere fact of delay in filing application cannot be made ground of rejection where other party can be compensated by costs."

11. The aforesaid observation would go against the

petitioner herein. The petitioner has failed to point out what

legal right accrued to her is going to be defeated by the

proposed amendment. Most of the facts sought to be introduced

by the proposed amendment were within the knowledge of the

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petitioner herself. Learned Advocate for the respondents was

justified in submitting that those facts should have been

introduced by the petitioner herself in the plaint.

12. It appears that the open plot was given on lease to

'Acharya Vaidyakiya Pratishthan', Jalgaon. The building came to

be constructed thereon. The shop blocks thereon came to be let

out to the respondents by the trust. The father of the petitioner

got back the entire property. True, the respondents started

paying the petitioner rent of the suit premises. What would be

the consequences of the proposes amendment on the merits of

the suits cannot be decided at this stage. No admission made in

the written statement gets withdrawn by the proposed

amendment. It is true that whether the property belongs to the

public trust can only be decided by by the Charity Commissioner.

No such issue is likely to be cropped up in the suits. The

question is whether the petitioner is entitled for possession of

the suit premises on the ground of reasonable and bona-fide

requirement. Since the application Exh.49 had not been

seriously contested before the trial Court in R.C.S. No.401 of

2014, the trial Court was justified in exercising its discretion in

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allowing the application. Since both the suits are to be heard

together, the trial Court therefore was justified in allowing the

application Exh.61 in R.C.S. No.349 of 2015, although the

submissions made by the learned Advocate for the petitioner

relying on the aforesaid authorities were correct in the facts and

circumstances of these cases. The merits of the proposed

amendment cannot be gone into at the time of deciding the

applications for amendment. Therefore, no interference is

warranted with the impugned orders.

The writ petitions, therefore, fail. Both the writ

petitions thus, dismissed.

13. The trial Court is requested to decide both the suits

preferably within a period of one year from the date of receipt of

copy of this order.

[ R. G. AVACHAT, J. ]

SMS

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