High Court
Facts
1 wp 15568.19&2767.21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 15568 OF 2019SHANTILAL S/O. MANIKLAL JAISWAL AND ANOTHERVERSUSSATISH @ CHANDU S/O. GANGARAM JAIKAR AND ANOTHER...Advocate for the Petitioners : Mr. S. J. RahateAdvocate for Respondents No.1&2 : Mr. A. D. Kasliwal…AND…WRIT PETITION NO. 2767 OF 2021ABHIJIT S/O. DILIP JAISWAL AND ANOTHERVERSUSSATISH S/O. GANGARAM JAIKAR AND ANOTHER...Advocate for the Petitioners : Mr. S. J. RahateAdvocate for Respondents No.1&2 : Mr. A. D. Kasliwal...CORAM:ARUN R. PEDNEKER, J.DATE:05th FEBRUARY, 2024ORDER:1.Heard.2.In Rent Suit No.13 of 2012, both the impugned orders dated08.07.2019 and 28.01.2021 are passed, as such, both these matters aretaken up together for hearing. 2 wp 15568.19&2767.21WRIT PETITION NO.15568 OF 20193.By the present petition, the petitioners are challenging theimpugned order dated 08.07.2019, passed below Exhibit 50, by thelearned 7th Joint Civil Judge, Junior Division, Aurangabad in Rent CaseNo.13 of 2012, refusing to grant amendment to the plaint. Theapplication for amendment to the plaint was filed by plaintiff no.2.4.Brief facts leading to the filing of the petition can bediscussed as under:A.The petitioners have instituted a Rent Case bearingNo.13 of 2012 in the court of Civil Judge Junior Division,Aurangabad, on 03.03.2012 for eviction from the suit shopof House No.463, admeasuring 11 X 10 Feet, situated atDarzi Bazar, Bhaji Market road, Cantonment, Aurangabad.the suit is filed by the landlords against the defendants. Thesuit is filed on the ground of bonafide requirement. The suitshop is leased to the tenant / defendant at the rate of Rs.19/-per month. It is the case of the plaintiffs that the plaintiffshad 2 sons, who are unemployed and they need the suit shopfor the purpose of their business. The eviction suit is alsofiled on the ground of sub-letting and alteration made to thesuit shop. As such, when the defendants failed to evict the 3 wp 15568.19&2767.21suit shop on 30.11.2011, the suit was filed against thedefendant under Section 16 of the Maharashtra Rent ControlAct on the above grounds. The defendant resisted the saidsuit by filing the written statement. Thereafter, evidence waslaid in the matter. After the evidence was over, theapplication was filed under Order 6 Rule 17 of the CPCseeking amendment after para 11. The plaintiff wanted toadd the paras mentioned in the application. Perusal of theapplication would show that the plaintiff contended that theplaintiff no.1 was initially pursued the matter but later on forsome reasons could not do it and, thereafter, the plaintiffno.2 is pursuing the matter and he has engaged anotheradvocate. B.Plaintiff No.2 intends to bring on record thedocuments relating to the earlier RCS No.831 of 2002between the parties. In the said suit, the defendant no. 11,The Executive Officer, Cantonment Board, Cantonment,Aurangabad had specifically averred in his written statementthat the defendant no.1 has erected, inside notified civilarea, Aurangabad, the erection bearing House No.463. Theerection is by way of steel frame structure on an area 110 4 wp 15568.19&2767.21Sq.Ft., which is required to be demolished. The notice wasgiven on 02.11.2002 bearing No.463/24. The plaintiff alsocontend that subsequent to the recording of evidence on04.07.2015, the property came to be transferred to him byvirtue of inheritance on 04.09.2015. Thereafter, there wasfurther documentation in terms of letter by the cantonmentboard dated 16.10.2017 for removal of unauthorisedconstruction at house no.463 and also a complaint lodged tothe MSEB and that the plaintiff wanted to bring in the abovedocuments and plead and amend the plaint after thecompletion of the evidence. C.The trial court on consideration of the application andresponse thereto dismissed the application of the plaintiffagainst which the present writ petition is filed by theplaintiff. 5.It is the contention of the plaintiff that the documents beingthe subsequent events should have been permitted thereto to be filed. Hesubmitted that in letter and spirit of Order 6 Rule 17 has not beenobserved and that the amendment can be carried out at any stage of theproceedings. Only thing the court has to bear in mind that it would not
Legal Reasoning
6 wp 15568.19&2767.2110.Having considered the rival submissions, it is required to benoted that Order 6 Rule 17 of the CPC deals with the amendment ofpleadings and it is quoted below:-“17. Amendment of pleadings.—The Court may at any stageof the proceedings allow either party to alter or amend hispleadings in such manner and on such terms as may be just,and all such amendments shall be made as may be necessaryfor the purpose of determining the real questions incontroversy between the parties:Provided that no application for amendment shall beallowed after the trial has commenced, unless the Courtcomes to the conclusion that in spite of due diligence, theparty could not have raised the matter before thecommencement of trial.”11.It is a settled law that the court would be liberal in grantingamendment, unless injustice would be caused to the other party, if, theamendment is allowed or that the amendment is not necessary to decidethe controversy in issue. This court in the case of Madhavrao s/o NagoraoMirase and another Vs. Shankar s/o Kishan Mirase and others, WritPetition No.13936 of 2019, dated 31.01.2024, as regards the amendmentof pleading has held as under:-“11. Aslo, in the case of Ganesh Prasad Vs.Rajeshwar Prasad and others, 2023 SCC OnLine SC 256,while dealing with amendment of pleadings, the Hon’bleSupreme Court, at para 36, has observed as under:-“36. In one of the recent pronouncements of thisCourt, in the case of Life Insurance Corporation ofIndia v. Sanjeev Builders Private Limited and Another, 7 wp 15568.19&2767.21Civil Appeal No. 5909 of 2022 dated 01.09.2022, theposition of law has been explained as under:“70. ..... (ii) All amendments are to be allowed whichare necessary for determining the real question incontroversy provided it does not cause injustice orprejudice to the other side. This is mandatory, as isapparent from the use of the word “shall”, in the latterpart of Order VI Rule 17 of the CPC.(iii) The prayer for amendment is to be allowed(i) if the amendment is required for effective andproper adjudication of the controversy between theparties, and(ii) to avoid multiplicity of proceedings, provided(a) the amendment does not result in injustice to theother side,(b) by the amendment, the parties seekingamendment does not seek to withdraw any clearadmission made by the party which confers a right onthe other side and(c) the amendment does not raise a time barred claim,resulting in divesting of the other side of a valuableaccrued right (in certain situations).(iv) A prayer for amendment is generally required tobe allowed unless(i) by the amendment, a time barred claim is sought tobe introduced, in which case the fact that the claimwould be time barred becomes a relevant factor forconsideration,(ii) the amendment changes the nature of the suit,(iii) the prayer for amendment is malafide, or(iv) by the amendment, the other side loses a validdefence.(v) In dealing with a prayer for amendment ofpleadings, the court should avoid a hypertechnicalapproach, and is ordinarily required to be liberalespecially where the opposite party can becompensated by costs. 8 wp 15568.19&2767.21(vi) Where the amendment would enable the court topin-pointedly consider the dispute and would aid inrendering a more satisfactory decision, the prayer foramendment should be allowed.(vii) Where the amendment merely sought tointroduce an additional or a new approach withoutintroducing a time barred cause of action, theamendment is liable to be allowed even after expiry oflimitation.(viii) Amendment may be justifiably allowed where itis intended to rectify the absence of materialparticulars in the plaint.(ix) Delay in applying for amendment alone is not aground to disallow the prayer. Where the aspect ofdelay is arguable, the prayer for amendment could beallowed and the issue of limitation framed separatelyfor decision.(x) Where the amendment changes the nature of thesuit or the cause of action, so as to set up an entirelynew case, foreign to the case set up in the plaint, theamendment must be disallowed. Where, however, theamendment sought is only with respect to the relief inthe plaint, and is predicated on facts which are alreadypleaded in the plaint, ordinarily the amendment isrequired to be allowed.(xi) Where the amendment is sought beforecommencement of trial, the court is required to beliberal in its approach. The court is required to bear inmind the fact that the opposite party would have achance to meet the case set up in amendment. Assuch, where the amendment does not result inirreparable prejudice to the opposite party, or divestthe opposite party of an advantage which it hadsecured as a result of an admission by the partyseeking amendment, the amendment is required to beallowed. Equally, where the amendment is necessaryfor the court to effectively adjudicate on the mainissues in controversy between the parties, the 9 wp 15568.19&2767.21amendment should be allowed. (See Vijay Gupta v.Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del1897)”12.In the Judgment of the Life InsuranceCorporation of India, which is also referred in the aboveJudgment of Ganesh Prasad (supra), the Hon’ble SupremeCourt has held that the prayer for amendment is generallyrequired to be allowed only where the amendment wouldenable the court to pin-pointedly consider the dispute andwould aid in rendering a more satisfactory decision. Theprayer for amendment should be allowed, where theamendment may be justifiably allowed, where it is intendedto rectify the absence of material particulars in the plaint.Ordinarily all amendments are to be allowed which arenecessary for determining the real question in controversyprovided it does not cause injustice or prejudice to the otherside. Where the amendment is sought before commencementof trial, the court is required to be liberal in its approach.The Hon’ble Supreme Court has held that the Plaintiffs andDefendant are entitled to amend the plaint, writtenstatement or file an additional written statement. It is,however, subject to an exception that by the proposedamendment, an opposite party should not be subject toinjustice and that any admission made in favour of the otherparty is not withdrawn. All amendments of the pleadingsshould be allowed liberally which are necessary fordetermination of the real controversies in the suit providedthat the proposed amendment does not alter or substitute anew cause of action on the basis of which the original lis wasraised or defence taken.13.Thus, the law on the subject is that the courtshould be liberal in allowing the amendment in pleadingsand as regards the written statement the court should be stillmore liberal in comparison to the amendment to theplaint....” 10 wp 15568.19&2767.2112.Although, the amendment applications is to be liberallyallowed, in the instant case, the entire evidence of parties is over and thenotice issued in the year 2002 by the cantonment board cannot beintroduced by amendment at the fag end of the suit. The suit is filed on03.03.2012, and, the notice issued in the year 2002 was available withthe plaintiff at the time of filing of the suit. So also, notice issued by thecantonment board for illegal construction long after the institution of thesuit, may not be relevant to substantiate the cause of action for filing ofthe suit.13.It is to be noticed that primarily the suit is for bonafiderequirements of the plaintiff and illegal construction being carried out forthe suit property prior to 2011, notice issued in the year 2017 may not berelevant as regards the cause of action in the year 2011.14.I see no reason to interfere the impugned order passed bythe trial court in not granting amendment at the fag end of the trial.Hence, Writ Petition No.15568 of 2019 is dismissed.WRIT PETITION NO.2767 OF 202115.The basic facts in Writ Petition No.2767 of 2021 are same asin Writ Petition No.15568 of 2019, as both the petitions are arising outthe same Rent Suit No.13 of 2012. 11 wp 15568.19&2767.2116.In the present petition, the petitioners are challenging theimpugned order dated 28.01.2021, passed in application below Exhibit –64, whereby the trial court refused to take the legal heirs of the deceasedplaintiff no.2 on record. The petitioners are the legal heirs of the originalplaintiff no.2 - Dilip Maniklal Jaiswal. The petitioner no.1 is the son andpetitioner no.2 is the wife of deceased Dilip Maniklal Jaiswal. On demiseof the plaintiff no.2 on 15.07.2020, application by the legal heirs ofplaintiff no.2 was filed to bring them on record as legal heirs of plaintiffno.2. The defendants raised objection contending that the plaintiff arenot the owners of the suit property, therefore, right to sue does notsurvive and, therefore sought rejection of the application. It was furthercontended by the defendants that the hearing of the suit was concludedand the matter was posted for Judgment and, therefore, the matter couldnot be entertained. The trial court relied upon Order 12 Rule 6 of theCPC, to pass the impugned order. Order 12 Rule 6 of CPC is quotedbelow:-“Rule 6 – No abatement by reason of death after hearing -Notwithstanding anything contained in the foregoing rules,whether the cause of action survives or not, there shall be noabatement by reason of the death of either party betweenthe conclusion of the hearing and the pronouncing of thejudgment, but judgment may in such case be pronouncednotwithstanding the death and shall have the same force andeffect as if it had been pronounced before the death tookplace.” 12 wp 15568.19&2767.2117.The trial court by taking into consideration Rule 6 ofOrder 12 and held that the suit is filed in the year 2012 and posted forfinal arguments since 05.09.2019. In spite of sufficient opportunity to theplaintiffs they did no appear for final arguments. The arguments onbehalf of the defendants are heard and by closing plaintiffs arguments,the matter was kept for final Judgment by passing order on 13.03.2020.However, due to the Covid-19 pandemic, the matter remained tobedecided and meanwhile the application was filed to bring the legal heirsof plaintiff no.2 on record. The court held that since the matter is finallyconcluded and the order is posted for Judgment and, thereafter, theplaintiff had died on 15.07.2020, as such, the death of the plaintiff no.2is after conclusion of the hearing and the matter is awaitingpronouncement of the Judgment. The trial court held that in view ofprovision given in Rule 6 of Order 12, the Judgment can be pronouncedwithout bringing the legal heirs on record and as it would have the sameforce as if the Judgment was pronounced before the death.18.The matter was reserved for Judgment on 13.03.2020 andplaintiff no.2 has expired on 15.07.2020 and the trial court pronouncedit’s order at Exhibit – 64 on 28.01.2021. In any event, after such aprolonged period of reserving the matter for Judgment, the matter isrequired to be re-heard. No Judgment can be passed; based on the 13 wp 15568.19&2767.21argument, which have concluded, on 13.03.2020. Thus, it was the dutyof the trial court to re-hear the arguments after a long lapse of time andto re-hear the arguments it is necessary to bring the legal heirs of plaintiffno.2 on record. No prejudice would be caused to the defendants if thelegal heirs are brought on record. 19.In view of the same, the impugned order dated 28.01.2021,passed by the trial court below Exhibit – 64 rejecting the application tobring the legal heirs of plaintiff no.2 on record is set aside. The legal heirsof plaintiff no.2 be brought on record. Thereafter, the arguments in thematter be heard afresh and the matter be concluded as expeditiously aspossible.20.Thus, Writ Petition No.2767 of 2021 is allowed and disposedof. [ARUN R. PEDNEKER, J.]marathe
Arguments
5 wp 15568.19&2767.21create injustice for the other side and that it is necessary for determiningthe real question in controversy between the parties. 6.Mr. S. J. Rahate, the learned counsel further submitted thatthat amendment should be refused only where the other party cannot beplaced in the same position as if the pleading had been originally correct,but the amendment would cause him as injury which could not becompensated in costs. 7.Per contra, Mr. A. D. Kasliwal, learned counsel for therespondents submits that evidence of both the parties was closed and thatthe documents which was sought to be placed on record were earlieravailable with the plaintiff, some of which even before the filing of theplaint and the amendment is not required to decide the real controversyin issue. The present petition is filed is only to delay the process.8.The learned counsel for the petitioners, relied upon theJudgment of this court in the case of Baburao S/o Sahebrao DeshmukhVs. Maharashtra Insecticides, 2004 (2) Mh.L.J. 717.9.The learned counsel for the respondents, relied upon theJudgment of the Hon’ble Apex Court in the case of Revajeetu Builders &Developers Vs. Narayanaswamy & Sons & Ors., 2009 (6) All MR 986(S.C.).