Shri. Hanumantrao Namdeo Gharge ... vs Shri. Sabeer Kasam Shaikh
2023 Latest Caselaw 5360 Bom

2023:BHC-AS:15472

                                                                           935-wp-4334-2023.doc
    Sonali

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                      WRIT PETITION NO. 4334 OF 2023

               Shri. Hanumantrao Namdeo Gharge
               deceased through legal heir
               Shri. Samit Hanumantrao Gharge                       ...Petitioner
                    Versus
               Shri. Sabeer Kasam Shaikh                             ...Respondent

               Mr. Abhijeet Desai a/w. Mr. Karan Gajra, i/b. Desai Legal for the Petitioner.
               Ms. Divya A. Pawar a/w. Mr. Sandesh Patil, for Respondent.

                                               CORAM : MADHAV J. JAMDAR, J.

DATED : 9th JUNE 2023 P.C. :

1. Heard Mr. Abhijeet Desai, learned counsel appearing for the

Petitioner and Ms. Divya Pawar, learned counsel appearing for the

Respondent.

2. By the present Writ Petition, the Petitioner who is the original

Appellant /original Defendant is challenging the legality and validity of

the order dated 2nd February 2023 passed by the learned Ad-Hoc

District Judge-1, Thane below Exhibit-34 in Regular Civil Appeal

No.167 of 2016. By the impugned order, said Exhibit-34 application

filed by the Appellant seeking amendment of the written statement was

rejected.

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3. It is the contention of Mr. Desai, learned counsel appearing for

the Petitioner that by the amendment application, subsequent events

were sought to be brought on record. He submitted that the Slum

Rehabilitation Authority issued notice dated 14th May 2018 and

directed the Petitioner to vacate the suit premises within a period of 7

days and thereafter, the Petitioner was heard and order was passed on

9th October 2018 directing him to vacate the suit premises. He further

submitted that thereafter, the Petitioner vacated the suit premises and

the same were demolished and thereafter in November-2018, the

construction work of the new building has started. He further

submitted that the construction is in progress and alternate premises in

lieu of suit premises by name "Samit Electric Works" is reserved by the

Slum Rehabilitation Authority in lieu of the suit premises. Therefore,

by the application bearing Exhibit-34, the subsequent facts were sought

to be brought on record in the written statement.

4. By the impugned order, the learned Ad-Hoc District Judge-1,

Thane rejected the said Exhibit-34 application on the ground that if

the amendment is allowed, the nature of the defence will change and by

the said amendment, it will have effect of ouster of the jurisdiction of

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the Court trying the suit. The learned Judge further observed that the

Appellant failed to exercise due diligence in filing the amendment

application. It is further stated that the appeal is pending since 2016

and the amendment application was filed in 2021, when the appeal was

to be heard finally.

5. While supporting the impugned order, it is the contention of Ms.

Divya Pawar a/w. Mr. Sandesh Patil, learned counsel appearing for the

Respondent that the amendment will have the effect of changing the

entire complexion of the defence. It is submitted that suit has been

decreed and the appeal is pending since 2016. By the proposed

amendment what is sought to be brought on record are the events

which have taken place in 2018 and therefore, amendment application

which has been filed in 2021, clearly shows that the Petitioner has

failed to show due diligence, which is the mandatory requirement of

2002 Amendment of the C. P. C. by which proviso was added in Order

VI Rule XVII. It is further submission of the Respondent that the

application was made when the appeal was to be taken up for hearing.

Therefore, it is submitted that the Writ Petition be dismissed.

6. The factual position on record show that in 2016, the Regular

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Civil Suit No.437 of 2007 filed by the Respondent was decreed by the

Judgment and Decree dated 30th April 2016. The present Petitioner

challenged the same by filing Civil Appeal No.167 of 2016. During the

pendency of said appeal proceedings were initiated against the present

Petitioner under the provisions of the Slum Areas (Improvement and

Clearance) Act, 1956 (hereinafter referred to as "the Slum Act") and the

order was passed of eviction against the present Petitioner on 9 th

October 2018. Subsequently, the suit premises were demolished and

construction work of new building is going on. If the facts which are

stated in the schedule of the amendment are taken into consideration,

then it is clear that the facts stated therein have taken place in May-

2018, October-2018 and November-2018 and construction is still

going on. Therefore, there is no substance in the reasoning given by the

learned Trial Court that the Petitioner has failed to show due diligence.

7. The further observation of the learned Trial Court that in view

of the amendment of the written statement, it will have the effect of the

ouster of the jurisdiction of the Court and therefore, the same is not

permissible cannot be accepted. In this case, the ouster of the

jurisdiction, if any will take place in view of the provisions of the Slum

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Act and in view of the declaration of the suit premises as slum. In any

case, the said reasoning given by the learned Appellate Court clearly

shows that the learned Appellate Court has gone into the merits of the

amendment, which is not permissible.

8. For the above reasons, the Writ Petition deserves to be allowed.

The impugned order dated 2nd February 2023 passed below Exhibit-34

in Regular Civil Appeal No.167 of 2016 is quashed and set aside. The

said application bearing Exhibit-34 filed in Regular Civil Appeal

No.167 of 2016 is allowed, subject to payment of cost of Rs.10,000/- by

the Petitioner to the Respondent. The said cost be paid within a period

of two weeks from today. The Petitioner is permitted to amend the

written statement within a period of two weeks after the said cost is

paid.

9. The Writ Petition is allowed in above terms with no order as to

costs.

[MADHAV J. JAMDAR, J.]