Bombay High Court
The Framjee Dinshaw Petit Parsee ... vs Rahil Jabbar Shaikh S/O Jabbar Gafoor ... on 12 September, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:38136
-WP9233-2021+.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9233 OF 2021
1. The Framjee Dinshaw Petit,
Parsee Sanatorium, A Public
Charitable Trust, registered
under the provisions of the
SWAROOP Bombay Public Trust Act, 1950,
SHARAD having its office situated at
PHADKE
Digitally signed by
UCO Bank Building, 359,
SWAROOP SHARAD
PHADKE
D.N.Road, Fort, Mumbai - 400 001
Date: 2025.09.12
20:13:14 +0530
2. Mrs. Mehroo Vedprakash,
Senior Executive and authorized
representative, The Framjee
Dinshaw Parsee Sanatorium,
having its trust office situated at
UCO Bank Building, 359, D.N.Road,
Fort Mumbai - 400 001 ... Petitioners
versus
Mr. Rahil Jabbar Shaikh,
Age and Occu - unknown.
S/o Jabbar Gafoor Shaikh,
Muslim, Indian Inhabitant of Mumbai,
residing at Nandan Society, B-7,
1st Floor, 224, Cadell Road,
Mumbai - 400 016. ... Respondent
WITH
WRIT PETITION NO.354 OF 2022
1. The Framjee Dinshaw Petit,
Parsee Sanatorium, A Public
Charitable Trust, registered
under the provisions of the
Bombay Public Trust Act, 1950,
having its office situated at
UCO Bank Building, 359,
D.N.Road, Fort, Mumbai - 400 001
2. Mrs. Mehroo Vedprakash,
Senior Executive and authorized
representative, The Framjee
SSP 1/20
::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:51:04 :::
-WP9233-2021+.DOC
Dinshaw Parsee Sanatorium,
having its trust office situated at
UCO Bank Building, 359, D.N.Road,
Fort Mumbai - 400 001 ... Petitioners
versus
Mrs. Tahira Jabbar Shaikh,
Age and Occu - unknown.
W/o Jabbar Gafoor Shaikh,
Muslim, Indian Inhabitant of Mumbai,
residing at Nandan Society, B-7,
1st Floor, 224, Cadell Road,
Mumbai - 400 016 (deceased)
1a. Rahil Jabbar Shaikh,
Age 54 years, having address
at B4076, Jewel Tower, Jogani
Complex, Sunder Nagar,
Santacruz (E), Mumbai - 400 098.
1b. Nilofeur Shaikh Samuel,
Age 52 years, having address at
307, Hamlin Loop, Walnut Creek,
CA - 94598 USA ... Respondents
WITH
WRIT PETITION NO.13822 OF 2022
Rahil Jabbar Shaikh
Age 50 years, Occu - Business,
Residing at Nandan Society,
B-7, 1st Floor, 224, Cadell Road,
Mumbai - 400 016 ... Petitioner
versus
1. The Framjee Dinshaw Petiti Parsee
Sanatorium, A public charitable Trust
Registered under the provisions of
the Bombay Public Trust 1950, having its
registered office at UCO Bank Building,
395, Dr. D.N.Road, Fort, Mumbai - 400 001
2. Sir Dinshaw Maneckjee Petit,
Age 48 years, Occu - Chairman of the Trust.
SSP 2/20
::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:51:04 :::
-WP9233-2021+.DOC
3. Mr. Khushroo N. Suntook,
Age 70 years, Occu - Business,
4. Mr. Adi Behram Kakihushraw Dubash
Age 68 years Occu - Business.
5. Mr. Darious Sorab Cambatta,
Age 68 years Occu - Business,
6. Sir Cawasji Jehangir,
Age 58 years Occu - Business
7. Lady Laila Petit,
Age 42 years, Occu - Business,
8. Mr. Fram Nuswanji Petit,
Age 46 years, Occu - Business
The Respondent Nos.2 to 8 are being the trustees
of the Plaintiff No.1 Trust having address at UCO
Bank Building 359, Dr. D.N.Road, Fort,
Mumbai - 400 001 ... Respondents
WITH
WRIT PETITION NO.13825 OF 2022
Tahira Jabbar Shaikh,
Age and Occu - unknown.
W/o Jabbar Gafoor Shaikh,
Muslim, Indian Inhabitant of Mumbai,
residing at Nandan Society, B-7,
1st Floor, 224, Cadell Road,
Mumbai - 400 016 (deceased)
1a. Rahil Jabbar Shaikh,
Age 54 years, having address
at B4076, Jewel Tower, Jogani
Complex, Sunder Nagar,
Santacruz (E), Mumbai - 400 098.
1b. Nilofeur Shaikh Samuel,
Age 52 years, having address at
307, Hamlin Loop, Walnut Creek,
CA - 94598 USA ... Petitioners
versus
SSP 3/20
::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:51:04 :::
-WP9233-2021+.DOC
1. The Framjee Dinshaw Petiti Parsee
Sanatorium, A public charitable Trust
Registered under the provisions of
the Bombay Public Trust 1950, having its
registered office at UCO Bank Building,
395, Dr. D.N.Road, Fort, Mumbai - 400 001
2. Sir Dinshaw Maneckjee Petit,
Age 48 years, Occu - Chairman of the Trust.
3. Mr. Khushroo N. Suntook,
Age 70 years, Occu - Business,
4. Mr. Adi Behram Kakihushraw Dubash
Age 68 years Occu - Business.
5. Mr. Darious Sorab Cambatta,
Age 68 years Occu - Business,
6. Sir Cawasji Jehangir,
Age 58 years Occu - Business
7. Lady Laila Petit,
Age 42 years, Occu - Business,
8. Mr. Fram Nuswanji Petit,
Age 46 years, Occu - Business
The Respondent Nos.2 to 8 are being the trustees
of the Plaintiff No.1 Trust having address at UCO
Bank Building 359, Dr. D.N.Road, Fort,
Mumbai - 400 001 ... Respondents
Mr. Ashish Kamat, Senior Advocate, with Mr. Vishesh Malviya, Ms.
Supriya Lopes and Mr. Atharv Patvardhan, for the Petitioners in
WP/9233/2021 and WP/354/2022 and for the Respondents in
WP/13822/2022 and WP/13825/2022.
Mr. Suhas S. Deokar, for the Petitioners in WP/13822/2022 and
WP/13825/2022 and for Respondent No.1 in WP/9233/2021 and
WP/354/2022.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 4th JULY, 2025
PRONOUNCED ON: 12th SEPTEMBER 2025
JUDGMENT:
-
-WP9233-2021+.DOC
1. Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2. The petitioner No.1 in Writ Petition Nos. 9233 of 2021 and 354 of
2022 is a Trust and the other petitioners are its trustees. The Trust is
the owner of an immovable property bearing CTS Nos.597 and 598
with a Sanatorium building thereon. There are five garages also
standing on the said property. Garage Nos.3 and 6 were let out to
Sheikh Gafoor Sheikh Kasam. Upon the death of Sheikh Gafoor, the
original tenant, the Trust entered into agreements with the respondent
in Civil Writ Petition No.9233 of 2021 and other surviving heirs of Mr.
Sheikh Kasam, in respect of Garage No.3 and with the respondent in
Civil Writ Petition No.354 of 2022, in respect of new Garage No.6. The
said agreement inter alia provided that the tenant shall be entitled to
use and occupy the said garages for the purpose of car parking only
and the change of user of the said garage subject to the requisite
permission of the Municipal Corporation (BMC). The tenant was not
entitled to transfer or alienate or induct or create any third party interest
in the said garages and that the tenant was not to, in any manner
commit, waste and damage to the Trust property.
3. The Trust instituted R.A.E. Suit No.763/1204 of 2013 in respect
of Garage No.3 seeking a decree for eviction inter alia on the ground
that there was non-user of the suit garage for the purpose for which the
suit garage was let for over six months without a reasonable cause;
-WP9233-2021+.DOC
such non-user of the tenanted premises tentamounted to 'waste' and
respondent has failed, and was not ready and willing, to perform and
observe the terms and conditions of the tenancy and the respondent
has illegally extended the tenancy premises by usurping the area in
front of the tenanted premises.
4. Likewise, the Trust instituted R.A.E. Suit No.762/1203 of 2013
seeking a decree of eviction in respect of new garage No.6, on
identical grounds.
5. The respondents resisted the suit by filing a written statement. It
was inter alia contended that Shaikh Jabbar Gafur, the father of
respondent No.4 in R.A.E. Suit No.1204 of 2013 and the husband of
respondent - defendant in R.A.E. Suit No.1203 of 2013, had already
obtained permission from BMC to carry on the business in suit
garages.
6. In view of the aforesaid stand of the Defendants, the Plaintiffs-
landlords filed application seeking production and inspection of the
documents pertaining to the alleged permission obtained by Sheikh
Jabbar for carrying on the business in, and user of, the suit garages.
By an order dated 28th June, 2018 the learned Judge, Court of Small
Causes directed the Defendants to give inspection of the documents
pertaining to the permission obtained by late Sheikh Jabbar from BMC
for change of user of the suit garages and the user of the suit garages
since the year 2004.
-WP9233-2021+.DOC
7. Instead of complying with the said order, the Defendants filed
application seeking amendment in the written statement so as to delete
the contention that late Sheikh Jabbar had obtained permission from
BMC for the said business. And add a completely new and inconsistent
version with regard to the change of user of the suit garages.
8. In the meanwhile, the landlord-Plaintiff preferred applications
seeking amendment in the plaint i.e. Exh.26 in R.A.E.Suit
No.763/1204/2013 and Exh.26 in R.A.E.Suit No.762/1203/2013. By
separate orders of even date, the learned Judge, Court of Small
Causes, was persuaded to allow the applications preferred by the
Defendants-tenants for amendment in the written statement observing,
inter alia, that the Plaintiff had not taken a ground of change of user of
the suit garages without obtaining the permission of the BMC in the
plaint, and, thus, there was contravention of Clause 5 of the tenancy
agreement, and, therefore, the objection to the proposed amendment
in the written statement on the count that it would amount to withdrawal
of an admission, and, thereby, caused prejudice to the Plaintiffs, was
without substance.
9. The applications preferred by the plaintiffs-landlord for the
amendment in the plaints so as to take additional grounds of eviction in
the context of change in user of the suit garages without the permission
of the BMC, were also allowed as, in the view of the Learned Judge,
the proposed amendment would not change the nature of the suits and
-WP9233-2021+.DOC
appeared to be necessary for deciding the real question in controversy
between the parties.
10. Being aggrieved, the plaintiffs have preferred WP Nos.9233 of
2021 and 354 of 2022 assailing the legality and correctness of the
order permitting the Defendants/tenants to amend the written
statements and the Defendants/tenants have filed WP Nos.13822 of
2022 and 13825 of 2022 questioning the orders whereby the Plaintiffs
have been permitted to amend the Plaints.
11. I have heard Mr. Ashish Kamat, learned Senior Advocate for the
landlord-Petitioners in WP Nos.9233 of 2021 and 354 of 2022 and for
the Respondents in WP Nos.13822 of 2022 and 13825 of 2022, and,
Mr. Suhas Deokar, learned Counsel for the tenants - Petitioners in WP
Nos.13822 of 2022 and 13825 of 2022 and for the Respondents in WP
Nos.9233 of 2021 and 354 of 2022. Learned Counsel for the parties
took the Court through the pleadings before the trial Court and the
material on record.
12. Mr. Ashish Kamat, learned Senior Advocate for the landlord -
Petitioners, would urge that the learned Judge, Court of Small Causes
committed a grave error in law in allowing the Defendants to amend the
Written Statements, and, thereby withdraw a clear and categorical
admission which conferred a right on the Plaintiffs / landlord. Mr.
Kamat would urge that the learned Judge lost sight of the well
recognized principle that, though the Defendant is entitled to take
-WP9233-2021+.DOC
inconsistent defences, yet, by way of amendment, the Defendant
cannot be permitted to withdraw the admission.
13. Mr. Kamat would urge, in the case at hand, what accentuates the
situation is the fact that on the basis of the said admission in pleadings,
the Court of Small Causes had already directed the Defendants to give
inspection of the documents referred to in paragraph Nos.11 to 15 of
the Written Statements. As the Defendants failed to provide the
inspection of the documents, as ordered, the Plaintiffs filed an
application seeking striking off the defence of the Defendants on
account of their failure to provide inspection of the documents. Only
thereupon, the Defendants filed applications seeking amendment in the
written statement so as to withdraw the said admission, and, wriggle
out of the situation. In this backdrop, according to Mr. Kamat, since the
admission on behalf of the Defendants was acted upon and the Court
passed orders thereon, the Defendants could not have been permitted
to amend the written statement so as to withdraw the said admission.
14. To buttress the submission that the Defendants by way of
amendment cannot be permitted to withdraw an admission, Mr. Kamat
placed reliance on a three Judge Bench judgment of the Supreme
Court in the case of M/s. Modi Spinning & Weaving Mills Co. Ltd.
and Anr. V/s. Ladha Ram and Co.1, and, another decision of the
1 (1976) 4 SCC 320
-WP9233-2021+.DOC
Supreme Court in the case of Revajeetu Builders and Developers
V/s. Narayanaswamy and Sons and Ors.2
15. In regard to the order passed by the learned Judge, thereby
permitting the Plaintiffs to amend the plaints so as to raise additional
ground of eviction, Mr. Kamat would urge, since the amendment was
sought at a pre-trial stage and on the basis of the contentions in the
written statements, the trial Court rightly permitted the Plaintiffs to
amend the plaints. Thus, no interference is warranted in those orders.
16. In opposition to this, Mr. Deokar, learned Counsel for the
Respondents - tenants would urge that the order passed by the
learned Judge permitting the amendment in the written statements are
legally sound. Mr. Deokar submitted that the principle is well
recognized that the application for amendment in the written statement
is required to be construed more liberally. In the case at hand, the
tenants after realizing the fact that, inadvertently, an incorrect
statement was made that the father and father in law of the tenant-
defendant, in the respective Suit, had obtained the permission from the
BMC, the tenants had filed the applications to correct the said
inadvertent error.
17. Mr. Deokar would urge, since the landlord had then not claimed
eviction on the ground that there was change of user of the suit
garages without the permission of the BMC, the learned Judge, Court
2 (2009) 10 SCC 84
-WP9233-2021+.DOC
of Small Causes, was justified in holding that the contention which was
allegedly admitted by the Defendants did not properly constitute an
admission. At any rate, an admission can be shown to be incorrect and
explained away. Therefore, the challenge to the impugned order on the
count that the Defendants were permitted to withdraw the admission is
devoid of substance, submitted Mr. Deokar.
18. To lend support to this submissions, Mr. Deokar placed reliance
on the judgments of the Supreme Court in the cases of B.K.Narayana
Pillai V/s. Parameswaran Pillai and Anr.3, Usha Balasaheb Swami
and Ors. V/s. Kiran Appaso Swami and Ors. 4, and, Sushil Kumar
Jain V/s. Manoj Kumar and Anr.5
19. Mr. Deokar would further urge that, the order permitting the
amendment in the plaint suffers from grave infirmities. Learned Judge,
Court of Small Causes, did not properly appreciate the nature of the
amendment sought by the Plaintiffs which had the effect of completely
altering the character of the suits.
20. In the matter of amendment in the pleadings, the legal position is
well settled. All amendments which are necessary for the
determination of real questions in controversy between the parties are
required to be allowed. Two overarching principles govern the exercise
of discretion to permit the amendment in the pleadings. Whether the
3 (2000) 1 SCC 712
4 (2007) 5 SCC 602
5 (2009) 14 SCC 38
-WP9233-2021+.DOC
amendment is necessary for the determination of the real question in
controversy. Whether the amendment has the potential to cause
irretrievable prejudice to the opponent.
21. The aspect as to whether the amendment would change the
nature of the suit and the relief claimed thereunder is otherwise barred
by limitation, also deserve to be taken into account. However, it is trite,
at a pre-trial stage, where the interdict contained in the proviso to Order
VI Rule 17 of the Code, does not come into play, an application for
amendment is required to be considered liberally, so as to resolve all
the disputes between the parties once and for all.
22. It is equally well recognized that a prayer for amendment of the
plaint, and that of the written statement, stand on different footings. A
prayer for amendment in the written statement is required to be
considered more liberally as the question of prejudice is less likely to
operate in the case of amendment in the written statement. (L.J.Leach
and Company Ltd. V/s. Jardine Skinner and Co.6 A defendant is
also entitled to take inconsistent but not materially destructive
defences.
23. In the light of the aforesaid broad propositions, reverting to the
facts of the case, it is necessary to note that in accordance with the
Tenancy Agreement dated 19 October 2001, under clause 5, the tenant
agreed not to use the suit garages for the purpose of repair of cars, or
6 (AIR 1957 SC 357)
-WP9233-2021+.DOC
for any other purpose, than the one for which garages were let out
(parking), unless necessary permissions/licences were issued.
24. In this context, it was averred in the plaint that the Defendants
were using the suit premises as garages for repairs of car and/or
vehicles. The Plaintiffs were not aware whether the Defendants had
obtained the necessary permission from the BMC for change of user of
the suit garages from car parking to car repairs. The Plaintiffs
professed to reserve their right to include the ground of wrongful
change of user of the suit garages for the eviction of the Defendants if
it is discovered that the change of user was without obtaining the prior
permission from the BMC (para 9 of the plaint in RAE Suit
No.763/1204/2013).
25. In response thereto, the Defendants in the written statement
(paragraph 11) contended that it was true that the original tenant was
using the garages and the open spaces for repairs of cars and vehicles
since 1960. The Defendants, however, contended that the Plaintiffs
were fully aware of the same. It was added that the original tenant had
already obtained permission from the BMC in the year 1978, and,
thereabout, for running the said business in the suit garages.
26. By the proposed amendment, the latter part i.e. the original
tenant had already obtained the permission from the BMC in the year
1978 or thereabout, for the said business, was sought to be withdrawn
and, instead, an explanation was sought to be offered that the original
-WP9233-2021+.DOC
tenant was prosecuted by the BMC for the unauthorized use of the suit
garages and the prosecution failed as the original defendant claimed
that he did not require the permission of BMC to repair his own cars.
27. Whether the aforesaid amendment amounts to withdrawal of the
admission is the moot question ? As a general rule, a Defendant is
entitled to take inconsistent and alternative pleas in defence by way of
amendment. However, such amendment should not cause irretrievable
prejudice to the Plaintiffs and the Defendant thereby shall not withdraw
an admission in favour of the Plaintiffs.
28. In the case of M/s. Modi Spinning & Weaving Mills Co. Ltd.
(supra), a three judge Bench of the Supreme Court, enunciated the
law as under :
"7. The trial court rejected the application of the
defendants for amendment. One of the reasons given by
the trial court is that the defendants wanted to resile from
admissions made in paragraph 25 of the written
statement. The trial court said that "the repudiation of the
clear admission is motivated to deprive the plaintiff of the
valuable right accrued to him and it is against law." The
trial court held the application for amendment to be not
bonafide.
8. The High Court on revision affirmed the judgment of
the trial court and said that by means of amendment the
defend- ants wanted to introduce an entirely different
case and if such amendments were permitted it would
prejudice the other side.
-WP9233-2021+.DOC
9. The decision of the trial court is correct. The defend-
ants cannot be allowed to change completely the case
made in paragraphs 25 and 26 of the written statement
and substitute an entirely different and new case.
10. It is true that inconsistent pleas can be made in
pleadings but the effect of substitution of paragraphs 25
and 26 is not making inconsistent and alternative
pleadings but it is seeking to displace the plaintiff
completely from the admissions made by the defendants
in the written statement. If such amendments are
allowed the plaintiff will be irretrievably prejudiced by
being denied the opportunity of extracting the admission
from the defendants. The High Court rightly rejected the
application for amendment and agreed with the trial
court." (emphasis supplied)
29. In the case of B.K.Narayana Pillai (supra), the Supreme Court
reiterated the principle in the following words :
"4...... The principles applicable to the amendments of the
plaint are equally applicable to the amendments of the
written statements. The Courts are more generous in
allowing the amendment of the written statement as the
question of prejudice is less likely to operate in that event.
The Defendant has a right to take alternative plea in
defence which, however, is subject to an exception that by
the proposed amendment the other side should not be
subjected to injustice and that any admission made in
favour of the Plaintiff is not withdrawn......."
(emphasis supplied)
30. In another line of decisions, a different view was propounded. In
the case of Panchdeo Narain Srivastava V/s. K. Jyoti Sahay and
-WP9233-2021+.DOC
Anr.7 it was enunciated that an admission made by a party may be
withdrawn or may be explained away. Therefore, it cannot be said that
by amendment an admission of fact cannot be withdrawn. In the case
of Usha Balasaheb Swami and Ors. (supra), after referring to the
previous pronouncement in the case of Akshaya Restaurant V/s. P.
Anjanappa8, the Supreme Court held that even an admission in the
pleadings can be explained and inconsistent pleas can be taken in the
amended petition even after taking a definite stand in the written
statement.
31. In the case of Sushil Kumar Jain V/s. Manoj Kumar and Anr.
(supra), the Supreme Court observed that even assuming that there
was admission made by the appellant in his original written statement,
then also, such admission can be explained by amendment of his
written statement even by taking inconsistent pleas or substituting or
altering his defence.
32. The aforesaid cleavage in the judicial opinion was considered by
a two judge bench of the Supreme Court in the case of Gautam Sarup
V/s. Leela Jetly and Ors.9 The Supreme Court held that the decisions
in the cases of Panchdeo Rarain Srivastava V/s. Km. Jyoti Sahay
and Anr.10, Akshaya Restaurant V/s. P. Anjanappa (supra) and Usha
Balasaheb Swami and Ors. (supra), were rendered without noticing
7 AIR 1983 SC 462
8 (1995 Supp (2) SCC 303
9 (2008) 7 SCC 85
10 1984 Supp. SCC 594
-WP9233-2021+.DOC
the binding precedent in the case of M/s. Modi Spinning & Weaving
Mills Co. Ltd. and Anr. (supra). The Supreme Court culled out the
position in law, 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."
33. In the case of Ram Niranjan Kajaria V/s. Sheo Prakash
Kajaria and Ors.11, a three judge Bench of the Supreme Court took a
survey of the precedents on this point and enunciated that the decision
in the case of Nagindas Ramdas V/s. Dalpatram Ichharam 12 which
was endorsed in Gautam Sarup V/s. Leela Jetly and Ors. (supra),
that a categorical admission made in the pleadings cannot be permitted
to be withdrawn by way of an amendment was correct. To that extent,
the proposition of law that even an admission can be withdrawn, as
propouned in Panchdeo Rarain Srivastava (supra), did not reflect
the correct legal position, and it was overruled. However, an
11 (2015) 10 SCC 203
12 (1974) 1 SCC 242
-WP9233-2021+.DOC
admission can be clarified or explained by way of amendment and the
basis of admission can be attacked in a substantive proceedings.
34. In the light of the aforesaid enunciation of law, reverting to the
facts of the case, it is necessary to note that, by the proposed
amendment in the written statement, what the defendant/tenant sought
was the deletion of the contention that the original tenant had obtained
permission from the BMC in the year 1978 or thereabout for the repairs
of the vehicles in the suit garages. However, the principal contention of
the defendant/tenant in paragraph No.11 of the written statement that
the original tenant was using the garages and the open space attached
to it for repairs of cars and vehicles since 1960, and the Plaintiffs were
fully aware of the same, was not sought to be withdrawn. The defence
of the tenants that the suit garages were used for the repairs of the
vehicles since 1960 by the original tenant and to the knowledge of the
Plaintiffs remains intact.
35. By way of proposed amendment, indeed the Defendant sought
to withdraw the contention that the original tenant had obtained the
permission from the BMC. Unable to give inspection of such
permission and produce the same, the Defendant/tenants sought to
instead contend that, during the lifetime of original tenant, the BMC had
initiated action against him for the unauthorized use of the suit garages
and the said action had failed and the copies of the judicial
proceedings in that regard were sought to be relied upon. The
-WP9233-2021+.DOC
aforesaid amendment, thus, appears to be clarificatory and explanatory
in nature.
36. The matter can be looked at from another perspective. In
accordance with the terms of Clause 5 of the Tenancy Agreement, it
was for the tenant to show that he had obtained the necessary
permission and licence from the competent authority, if there was a
change in the user of the suit garages. If it is demonstrated that there
was indeed change in the user of the garages, it would be for the
tenant to establish the fact that there was requisite permission for the
same. To put in other words, the onus would shift on the tenant to
positively establish the fact that the change of user was with the
permission of the competent authority. Therefore, the deletion of the
contention that the original tenant had obtained the permission in the
year 1978 or thereabout, may not cause an irretrievable prejudice to
the Plaintiffs as the principal contention that the original tenant had
been using the suit garages for the repairs of the car has not been
withdrawn and remains intact.
37. In the aforesaid view of the matter, the learned Judge, Court of
Small Causes does not seem to have committed any error in allowing
the Defendants to amend the written statement.
38. As regards the amendment in the plaints, it would be suffice to
note that those amendments were essentially consequential to the
stand taken by the defendants in the written statements. The ground of
-WP9233-2021+.DOC
change of user of the suit garages, and thereby the breach of the terms
and conditions of lease, was sought to be added by way of proposed
amendment in the plaints, consequent to the contentions in the written
statements. As the interdict contained in the proviso to Rule 17 of
Order VI of the Code did not come into play and the question as to
whether the change of the user of the suit garages by the tenants is in
breach of the Tenancy Agreement, is at the heart of the matter, no fault
can be found with the order permitting amendment in the plaints.
39. Resultantly, no interference is warranted in the orders passed by
the learned Judge, Court of Small Causes, permitting the amendment
in the plaints as well as written statements. All the Petitions, therefore,
deserve to be dismissed.
40. Hence, the following order:
:ORDER:
(i) The Writ Petitions stand dismissed.
(ii) Rule Discharged.
(III) In the circumstances of the case, there shall be no order
as to costs.
[N. J. JAMADAR, J.]
