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CNR NO. MHSCA2-002978-2018

IN THE COURT OF SMALL CAUSES AT MUMBAI

ORDER BELOW EXHIBIT NO.18

IN
T. E. & R. SUIT NO. 182 OF 2018

1. Funds and Properties, of the

Parsi Punchayet Bombay and Ors. ..... Plaintiffs
Versus
1. Heirs and Legal representatives of
late Mr. Darayus Cawas Balsara & Ors. ….. Defendants

K. G. Bhot, Ld. Advocate for the Plaintiffs.

Chandrika Prajapati, Ld. Advocate for the Defendant No.2.
Shri Subhash J. Ghatge, Ld. Advocate for the Defendant No.3 and 4.

Coram :- P. P. Naigaonkar
Judge, C.R.No.19
Date :- 02/11/2023
ORAL ORDER :

The plaintiffs have filed this application for amendment of the

plaint as per schedule.

2. It is the contention of the plaintiffs that, they have instituted the

plaint / suit under the provisions of Chapter VII of the Presidency Small
Causes Court Act and the same is pending for hearing. The plaintiffs states
that, defendant No.2 has filed his written statement dated 20.02.2019
claiming sub-tenancy rights. It is the contention of both the defendants
that the suit premises is not an open plot of land but has structures
constructed thereon. The plaintiffs states that, defendant No.3 and 4 claim

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to be in occupation of the portion of the suit premises as Shop No.2. In

essence, both the sets of defendants have denied the claim made by the
plaintiffs in their plaint filed filed before this court. The plaintiffs states
that, looking at the tenure of the written statement filed by the defendants,
the plaintiffs desires to seek amendment to the plaint by bringing on
record alternative plea under the provisions of Section 16 of the the
Maharashtra Rent Control Act, 1999. The plaintiff states that, even
assuming for the sake of arguments and without prejudice to the rights
and contentions of the plaintiff they are entitled to the eviction of the
defendants from the suit premises being the plot of land. The plaintiffs
states that, the matter has not commenced hearing and that the plaintiffs
have still to file their affidavit of evidence. Only after having through the
documents submitted by the defendants and considering the pleas taken by
the defendants the plaintiffs be now permitted to seek amendment to the
plaint as per schedule annexed.

3. The plaintiff states that, the amendment sought for is

absolutely without prejudice to the rights and contentions of the plaintiffs
and that no cause for prejudice can be said to be caused to any of the
defendants in the event of the reliefs being granted. Whereas, on the other
hand, grave prejudice and hardship would be caused to the plaintiffs in the
event of the relief being not granted. The plaintiffs states that, the court
will be in a position to adjudicate finally on the rights and contentions of
the defendants on the basis of the plea now taken before the Court.
Therefore, plaintiff prayed for amend the plaint as per the schedule
annexed.
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4. To counter the application, reply at Exhibit-22 filed by the

defendant No.2. The defendant No.2 states that, the application is not
maintainable either in law or on facts and is liable to be dismissed in
limine against all the defendants. The defendant No.2 states that, the
present application is nothing, but an attempt made by the plaintiff to
improve upon his pleadings which is not permitted under the law. The
defendant No.2 states that, while the provision of Code of Civil Procedure,
1908 are not applicable to this court, the basic principles mentioned there
with regard to the amendment of pleadings are applicable in all the courts.
The plaintiffs in terms of para 3 of the plaint has claimed the tenancy of
the vacant plot mentioned therein and the defendant No.2 has in the
written statement clearly stated that his tenancy is with regard to the
garage which he is in occupation of for more than 60 years. Accordingly,
the plaintiff in the present application have stated that they were not
aware of the same and therefore wants to amend their plaint in terms of
their application.

5. The defendant No.2 further states that, it is a general rule of

amendment that any party to the proceedings can amend their pleadings
after the trial has commenced only if 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. Therefore, due
diligence and the knowledge of facts of the party seeking the amendment
is of utmost importance. However, in the present instant the plaintiff was
always aware that the defendant No.2 is in use and occupation of the
garage and not the open piece of land and this can be borne out from the
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various letters and correspondence between the plaintiff and defendant

No.2. The defendant No.2 states that, the application filed by the plaintiff
must be dismissed on the grounds of the trail in the matter has
commenced under the provision of Order VI Rule 17 of the Code of Civil
Procedure, amendment of cause of action, lacuna in pleadings, the rights
have been accrued to the plaintiff and the defendant under the pleadings,
Rule 11 of the Presidency Small Causes Court Rules and Character of the
suit per plaint and amendment application.

6. The defendant No.2 states that, suit premises is a Garage with

permanent structure. The defendant No.2 states that, on one hand the
plaintiff state that, there is no landlord-tenant relationship and on the
other hand state that the plaintiffs want to evict the defendants under the
provisions of the Maharashtra Rent Control Act, 1999. The present suit is
filed under section 41 of the Presidency Small Causes Court Act 1882. The
provisions of both the Acts are clear that the same can be filed only if there
is a landlord-tenant relationship. The defendant No.2 states that, Court
will in due course conclude whether the defendants will be evicted under
the present suit. The said premises is not an open plot of land but a
Garage. Nonetheless, even for the sake of the argument the provisions of
the Maharashtra Rent Control Act, 1999 are not applicable to the plot of
open land and the suit should on this ground be dismissed.

7. The defendant No.2 states that, the trial of suit has already
commenced as more particularly stated in para No.3(i) hereinabove. The
defendant No.2 states that, the plaintiff admit that after perusal of the
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written statement they are desirous of seeking an inconsistent amendment

against the Presidency Small Causes Rules, Rule 11 which has been
explained in detailed. The defendant No.2 states that the plaintiffs cannot
take advantage of its own delay and laches. The amendment application is
nothing but afterthought of the plaintiff. The plaintiff has filed appropriate
proceedings under the Presidency Small Causes Court Act and deliberately
refrained from filing a suit under the the Maharashtra Rent Control Act,
1999 and thereby relinquishing the portion of claim to bring the suit
before this court. The defendant No.2 states that, grave harm and
prejudice will be caused to if the application is allowed as the plaintiff
cannot without admitting a landlord-tenant relation cannot claim eviction
on the grounds more particularly covered under the the Maharashtra Rent
Control Act, 1999. The Hon'ble Supreme Court in Raizada Topandas & Anr
Vs. M/s. Gorakhram Gokalchand, obeserved that, that a suit which was
competent to establish title under Sec.29-A was a suit to establish title de
hors of Bombay Rent Act and not a suit which sought to establish title
which required to be established under the Rent Act itself. It is obvious
that in the suit before the Court of Small Causes, it was open to the tenant
to claim protection under the Act and by reason of Section 28 no other
Court had jurisdiction to try that claim. The plaintiff has filed the suit
denying the landlord and tenant relationship and on the other hand
desires to evict the present defendant by amending the plaint and adding
grounds of Section 16 of the the Maharashtra Rent Control Act. There is an
inconsistent pleading taken by the plaintiff and therefore on this ground
the application ought to be dismissed.

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8. The defendant No.2 stats that, the present application and the
suit can be adjudicate defendant only if the plaintiffs prove this court has
the jurisdiction to decide the matter on its merits. It is an established law
that if the court does not have the jurisdiction to adjudicate the matter
then any order passed in the matter is not valid. Hence, defendant No.2
prayed for rejection of the application.

9. Thereafter, plaintiff filed re-joinder at Exhibit-23 whereby they

denied all the contention of the defendant No.2 and reiterate their
contentions. Plaintiff states that, they have given reasonable explanation
for the amending the plaint as per schedule. Plaintiff prayed that, their
application be allowed.

10. Defendant No.3 and 4 resisted the application by filing reply

at Exhibit-24. The defendant No.3 and 4 states that, they are aware and
do not admit the deponent has authority to file the present application
under the said alleged power of attorney executed by the plaintiff and
therefore, without admitting the said authority of the deponent to file
application. The application is barred by law of limitation in as much as
the application is silent as to the sufficient cause, which prevented the
plaintiffs from filing application within time prescribed under the law,
hence, on that count itself the application is liable to be rejected with costs.

11. The defendant No.3 and 4 have been claiming to be lawful

sub-tenant as they are in possession in their occupation much prior to 1973
and therefore, they are protected under the provisions of the Maharashtra
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Rent Control Act, 1999. The defendant No.3 and 4 denied that, the
plaintiffs are entitled to seek amendment to the plaint by bringing on
record alternative plea under the provision of Section 16 of the the
Maharashtra Rent Control Act, 1999 and therefore, without admitting the
plaintiffs’ rights to carry out amendment. The defendant No.3 and 4
denied that plaintiffs are entitled to seek eviction of the defendant from
the suit premises being the plot of land as falsely alleged.

12. The defendant No.3 and 4 denied that, the trial is not
commenced and only after gone through the document submitted by the
defendants and considering the plea taken by the defendants the plaintiffs
are seeking amendment to the plaint as per the schedule annexed and
plaintiffs be permitted to carry out amendment as falsely alleged. The
defendant No.3 and 4 denied that, the amendment sought for is without
prejudice to the rights and contention the plaintiff and no prejudice would
be caused to defendant if the event of the reliefs are granted, on the other
hand grave prejudice and hardship would be caused to the plaintiffs in the
event of the relief is not granted as falsely alleged. The defendant No.3 and
4 prayed for rejection of the application.

13. Heard ld. Counsels for both sides at length.

14. Upon hearing both counsels and going through rival

contentions the following points are arises for my determination. I have
recorded my finding thereon for the reasons stated as under :-

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Sr. Points Findings

No.
1. Whether plaintiffs to be allowed to amend Yes.
the plaint as prayed in the schedule ?
2. What Order ? Application is
allowed.

:: R E A S O N S ::
15. As to Point No.1 and 2 :- At the outset, it is necessary to
submit that, the present suit filed in the year 2018, the written statement
filed in the year 2019. The issues are framed in the year 2020. Earlier the
amendment application filed by the plaintiff in the year 2021 thereby
application for amendment of the plaint which is required for just and
proper adjudication. Considering the suit and amendment sought no doubt
it is relating to suit premises held from the plaint and the written
statement. Both plaintiffs and defendants claimed their right in their
respective capacity. On going through the present application, it appears
that the trial of the suit is yet not commenced. According to plaintiff, by
way of amendment plaintiff wants to bring the correct fact on record. The
trial of the suit is yet not commenced.

16. At this juncture, it can be determine or verify whether

necessary facts which are required to be brought on record are inter-se
within the knowledge of plaintiffs and defendants. But considering the
contention of the application and reply, it is much relating to the suit for
determination and adjudication. It is very much required to be brought on
record as a pleading by the plaintiffs. If the plaint is amended and certain

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pleadings are brought on record, no prejudice will cause to the defendants.

Because they will get opportunity to counter the pleading in the plaint. It is
settled principle of law that, in any suit or proceeding if certain facts are
necessary for the adjudication of suit, these are required to be brought on
record. As per provision of Order VI Rule 17 of Code of Civil Procedure at
any stage of the suit the amendment to the pleadings can be allowed. So
far as the proviso to Order VI Rule 17 of the Code Civil Procedure in the
present suit neither issues are framed nor evidence has been filed suit at
the earliest stage of the suit the amendment is required.

17. In support of the contention, the plaintiff has relied following

the authorities as under :
Praful Manohar Rele Vs. Smt. Krishnabai Narayan
Ghosalkar & Ors. reported in (JT 2014(1) SC 405).

18. In support of the contention, the defendant No.2 has relied

following the authorities as under :
1. M/s. Auto Hirers and other Vs. Commerce Centre Co-
Operative Society Ltd. reported in (2018 (3) Mh.L.J.).

2. Savitribai Vishnupati Vaske and Ors Vs. Faruk

Abdulrahim Patel and Ors. reported in (2010 (5) Mh.L.J.).

3. A. K. Gupta and Sons Ltd. Vs. Damodar Vally

Corporation reported in (1966 (1) SCR 796 : AIR 1967 Sc
96).

4. Samuel And others Vs. Gattu Mahesh and Ors. reported

in (2012 (2) SCC 300.).

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5. Vidyabai and others Vs. Padmalatha and Another

reported in (2009 (2) SCC 409.).

6. Vineet Kumar Vs. Mangal Sain Wadhera reported in

(1984 (3) SCC 352).

7. Ma Shwe Mya Vs. Maung Mo Hnaung reported in

(MANU/PR/0130/1921).

8. Kanda And Others Vs. Waghu reported in (1949-50 77

IA 15).

19. On going through the pleading which are sought by way of

amendment. It will not change the nature of the suit or prayer. Therefore,
it is justifiable to allow plaintiffs to amend the plaint. I incline to allow the
application in the interest of justice. Hence, Point No.1 is answered in the
affirmative and in answer to Point No.2, following order is passed.
:: O R D E R ::

a) Application is allowed.
b) Plaintiffs are permitted to carry out the
amendment as per schedule till next date.
c) On carrying out the amendment, plaintiffs
shall file amended plaint forthwith and
supply the copy to the defendants.
d) No order as to costs.

Mumbai (P. P. Naigaonkar)

Date : 02.11.2023 Judge, Court Room No.19
Order Dictated on Computer :- 02/11/2023
Order Checked & Signed on :- 02/11/2023

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