Abeda Iqbal Patel v. Cormorant Investment Pvt. Ltd.

Judgment

JUDGMENT: 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 application for amendment was moved. The Respondent’s- Plaintiff’s Revision Application against 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:- 34 (4):- Where no appeal lies under Section 34 (4):- Section 34 (4):- Section 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:- 29 (3):- Where no appeal lies under Section 29 (3) Section 29 (3) Section 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 Writ Petition No.258 of on the judgment of this Court in Writ Petition No.258 of Writ Petition No.258 of dated 5th August, 2008. (M/s. J.M.Constructions 2007, dated 5th August, 2008. (M/s. J.M.Constructions 2007, dated 5th August, 2008. (M/s. J.M.Constructions 2007, Sukhdev Prasad Dr.Rustom P.Patel & Ors.) (S.B) and Sukhdev Prasad Vs.Vs.Vs. Dr.Rustom P.Patel & Ors.) (S.B) Sukhdev Prasad Dr.Rustom P.Patel & Ors.) (S.B) Vs. Rambhujarat Kshamapati @ Rambhujarat Raghubir Vs. Rambhujarat Kshamapati @ Rambhujarat Raghubir Vs. Rambhujarat Kshamapati @ Rambhujarat Raghubir ( 4 ) reported in 1982 (i) Bom. C.R. 832, (D.B.). Chhampati, reported in 1982 (i) Bom. C.R. 832, (D.B.). Chhampati, reported in 1982 (i) Bom. C.R. 832, (D.B.). Chhampati, 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 Sayarabi Sayyad Abdul Ajij Sayarabi Sayyad Abdul Ajij (Deceased) through L.Rs. Vs. Shri Abdul Rashid Abdul through L.Rs. Vs. Shri Abdul Rashid Abdul (Deceased) (Deceased) through L.Rs. Vs. Shri Abdul Rashid Abdul Majid, 2004 (4) All M.R. 581 (S.B.), 2004 (4) All M.R. 581 (S.B.), considering same Majid, Majid, 2004 (4) All M.R. 581 (S.B.), 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. Dondapati Narayan Reddy Vs. 7. The Supreme Court in Dondapati Narayan Reddy Vs. Dondapati Narayan Reddy Vs. Venkatanarayana Reddy, (2001) 8 S.C.C. 115 Duggireddy Venkatanarayana Reddy, (2001) 8 S.C.C. 115 Duggireddy Venkatanarayana Reddy, (2001) 8 S.C.C. 115 Duggireddy ( 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 Rajesh Kumar Aggarwal Vs. K.K.Modi, (2006) 4 Rajesh Kumar Aggarwal Vs. K.K.Modi, (2006) 4 S.C.C. 385, 385, the Supreme Court has observed as under:- S.C.C. S.C.C. 385, "15.

16. 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. 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 )

20. 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. 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. The various decisions rendered by this Court 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. Baldev Singh Vs. Manohar Singh, (2006) 6 S.C.C. Baldev Singh Vs. Manohar Singh, (2006) 6 S.C.C. 198198198, 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". Usha Balasaheb Swami Vs. Kiran Appaso Swami, 10. In Usha Balasaheb Swami Vs. Kiran Appaso Swami, Usha Balasaheb Swami Vs. Kiran Appaso Swami, 5 S.C.C. 602, the Apex Court has further (2007) 5 S.C.C. 602, (2007) 5 S.C.C. 602, (2007) 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.

22. 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 a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 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." Andhra Bank Vs. ABN Amro Bank N.V. and Ors. 11. In Andhra Bank Vs. ABN Amro Bank N.V. and Ors. Andhra Bank Vs. ABN Amro Bank N.V. and Ors.