2003(1) ALL MR 165
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M.S. KHANDEPARKAR, J.

Shri. Anil Joseph Rawade Vs. Benjamin Premanand Rawade & Ors.

Civil Revision Application No.306 of 1999

21st June, 2002

Petitioner Counsel: Shri. A. K. ABHYANKAR, J. V. PARMAR
Respondent Counsel: Shri. ABHAY S. OKA

(A) Civil P.C. (1908), S.115 - Revision - Exercise of jurisdiction under S.115 - It is not necessary that both requirements under Clauses (a) and (b) are to be satisfied - Once it is clear that interference in revisional jurisdiction is justified under Clause (a), certainly Revision Application would be maintainable. (Para 7)

(1996) 6 SC 44 - Referred to.

(B) Civil P.C. (1908), O.6, R.17 - Amendment of pleadings - Application for - It is necessary for court to consider whether any right has been accrued in favour of opposite party on account of delay on part of the party seeking to amend pleadings, and that such a right would be taken away if prayer for amendment is allowed - This is more so, when party seeks to amend pleadings on account of subsequent events.

Though the Courts have also been liberal for grant of amendment, and more particularly when the proposed amendments are necessary for effective adjudication between the parties and are relevant to the point in controversy between the parties. It is also necessary to consider whether any right has been accrued in favour of the opposite party, on account of delay on the part of the party seeking to amend the pleadings, and that such a right would be taken away if the prayer for amendment is allowed, and whether the amendment is necessary and relevant for just decision in the controversy between the parties in the matter. This is more so, when the party seeks to amend the pleadings on account of subsequent events.

In case of application for amendment, the Courts are required to be liberal in allowing the party to amend the pleadings with the intention to put an end to all the disputes between the parties relating to subject matter of the dispute. However, when the application is filed seeking to introduce, the facts which are alleged to have occurred subsequent to institution of the proceedings or during the pendency of the proceedings, it is necessary for the court to consider whether the facts which are sought to be introduced by way of amendment, are apparently relating to the events which occurred subsequent to the initiation of the proceedings or during the pendency of the proceedings or a mere attempt to revive issue which has been already disposed of by the Court and which has attained finality. In the case in hand, it is the case of the respondents that they are in occupation of the front room of the premises as the sub-tenant, the petitioner being the main tenant, and that for said occupation he was contributing towards the rent payable to the landlord by the petitioner. It is also not in dispute that the petitioner was collecting money from the respondents for their occupation of the front room premises. In the back ground of these facts on record and the trial Court having adjudicated the issue as to whether the respondents are sub-tenant in relation to the premises in question and having answered the same in the negative and the same having been confirmed by this Court as well as by the Apex Court, and after the decision of the Apex Court, the respondents having approached the trial Court with the application for amendment that during the pendency of the proceedings there was new tenancy created in favour of the respondents by the petitioner, it was necessary to ascertain from the facts sought to be introduced by way of amendment, as to whether the same apparently relate to the events which have occurred subsequent to the institution of the suit and during the pendency of the proceedings. Bare reading of the impugned order discloses that the trial Court has not applied its mind to this aspect while allowing the application for amendment. [Para 8,10]

AIR 2001 SC 1441 - Followed.

Cases Cited:
Prem Bakshi Vs. Dharam Dev, (2002) 2 SCC 2 [Para 5,6]
Union of India Vs. Dhanwanti Devi, (1996) 6 SCC 44 [Para 7]
Vallampati Kalvanthi Vs. Haji Ismail, AIR 2001 SC 1441 [Para 8]


JUDGMENT

JUDGMENT :- Heard the learned Advocates for the parties. Perused the records.

2. The petitioner challenges order passed by the Court below allowing the respondent to lead further evidence, documentary as well as oral, and allowing the application for amendment to the pleadings relating to defence filed by the respondent in the trial Court. The orders are dated 7th December, 1998 and 18th February, 1999 passed in eviction application No.395-E of 1972 by the Court of Small Causes at Mumbai.

3. The facts relevant for the decision of the petition are that late Joseph, the father of the petitioner was the tenant in respect of Flat No.2 in Fency Flat, Ground Floor, Byculla, Bombay. The said premises consists of two rooms, toilet and bath-room with other facilities and tenancy commenced from the year 1939. The said Joseph expired in the year 1967 and tenancy rights in respect of the said premises were inherited by the petitioner. Since 1954 the respondent was permitted to occupy front room of the said flat. According to the petitioner, the occupation of the said room by the respondent was that of the licensee whereas, according to the respondent, it is in the capacity as the sub-tenant. In June 1972, the petitioner herein filed eviction proceedings in the Small Cause Court at Bombay, against the respondent. After hearing the parties, the trial Court by its order dated 18-6-1976 held that the respondent was not a lawful sub-tenant but a licensee and, therefore, he is not entitled to enjoy the protection under the Bombay Rent Act. The appeal filed against the same was allowed by the appellate Tribunal by its order dated 19th October 1982 holding that the respondent is a sub-tenant of the petitioner in relation to the said room. The petitioner thereupon preferred Writ Petition No.3611/1982 and by an order dated 9th January, 1986, the learned Single Judge of this Court set aside the order of the appellate Tribunal holding that the respondent is not the lawful sub-tenant but only a licensee. The Apex Court in Civil Appeal No.1119/1986 arising from the said order of this Court, while dismissing the appeal held that though the respondent was in exclusive possession of front room of the Flat, in the absence of satisfactory establishment of the relationship of the lessor and lessee between the petitioner and the respondent herein, it could not be said that the respondent was a sub-tenant of the petitioner and the real relationship of lessor and lessee does not exit between the parties. Thereafter on 30th Sept. 1998, the respondent herein filed an application before the trial Court for allowing him to produce further evidence in the matter which was allowed by an order dated 7th December 1998 and thereafter the respondent filed an application for amendment of the pleadings pertaining to his defence which was also allowed by an order dated 18th February 1999. The amendment and permission to lead evidence was granted on the basis of the plea of the respondent that the same are required on account of happening of certain subsequent events.

4. While assailing the impugned orders, it was submitted by the learned Advocate for the Petitioner that pursuant to the finding arrived at by the trial Court regarding absence of relationship as the lessor and lessee between the parties in relation to the suit premises and specific finding about the status of the respondent being that of a licensee in the suit premises and the said finding being confirmed by this Court as well as by the Apex Court, it was not permissible for the trial Court to allow the application for amendment and to permit the respondent to lead further evidence in support of alleged subsequent events. The pleadings sought to be incorporated by way of amendment, do not disclose any change in the status of the respondent from the lessor to the lessee and considering the provisions of Presidential Small Causes Act, 1952 and more particularly Sections 41 and 43, as was in force prior to 1-4-1976 and Sections 41 to 46 as were introduced in State of Maharashtra by way of amendment with effect from 1st July 1976, it was submitted that the defence of the respondent had been that he had been contributing half share of the rent in respect of the premises and that there being no dispute about the payment of consideration for the occupation in premises by the respondent, mere acceptance of such consideration during the pendency of the proceedings and that too without prejudice to the rights to the petitioner, it cannot be said that there has been any subsequent change in the status of the respondent vis-a-vis his occupation of the suit premises, so as to enable the respondent to amend the pleadings and to lead further evidence in the matter. According to the learned Advocate for the petitioner the decision on the point of status of the respondent in the suit premises is concluded by order of the Apex Court in Civil Appeal No.1119/1986 passed on 3rd December 1977. Further considering the fact that the application of the amendment and for production of the further evidence was filed after said pronouncement by the Apex Court regarding the status of the respondent, it is clearly a belated and after thought application filed only to protract the litigation.

5. On the other hand, while disputing the maintainability of the Revision Application, the learned Advocate for the respondents submitted that in view of the decision of the Apex Court in Prem Bakshi Vs. Dharam Dev reported in (2002) 2 SCC 2 allowing parties to amend the pleadings would not amount to final disposal of the matter, and the order allowing amendment cannot be said to result any failure of justice or cause any irreparable injury to the opposite party and in the absence of satisfaction of the conditions stipulated in the sub-section (1) of Section 115 of the C.P.C. the High Court would not be justified in interfering in the impugned order. It was further submitted that the application for amendment is apparently in relation to the events which have occurred after institution of the proceedings by the petitioner against the respondent, as well as after conclusion of recording of evidence in the matter before the trial Court, and the events referred to in the proposed amendment relates to the year 1983. Similarly, the documents which are sought to be produced are also in relation to the events which occurred since the year 1983 onwards and those being the subsequent events, the Court is empowered to take note of the same, provided they are brought on record by way of amendment and the evidence in support of the amended pleadings in that regard being placed on record. As regards the contention that the application is belated it was sought to be argued that the matter was all throughout pending before the High Court and it was only after conclusion of the proceedings before the Apex Court, that the respondent had opportunity to place on record before the trial Court, the subsequent events, and viewed from this angle, it cannot be said that there was any delay on the part of the respondent in seeking amendment and leave to produce further evidence in the matter.

6. Before considering the challenge to the impugned orders, it would be necessary to deal with objection sought to be raised on behalf of the respondents regarding non-maintainability of the revision application against the order of grant of amendment and allowing production of further evidence. According to the learned Advocate for the respondents, as stated above, in view of provisions of Section 115 of C.P.C. in order to enable the High Court to interfere in the revisional jurisdiction in an order passed by the Court below, it is necessary that such an order should finally dispose of the suit or other proceedings or such an order if allowed to stand would cause a failure of justice and irreparable injury to the party against whom it has been made. The Apex Court in Prem Bakshi's case (supra) has ruled thus :

"The proviso to sub-section (1) of Section 115 CPC. puts a restriction on the powers of the High Court inasmuch as the High Court shall not, under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where, (i) the order made would have finally disposed of the suit or other proceedings, or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under clause (a), the High Court would be justified in interfering with an order of a subordinate court if the said order finally disposes of the suit or other proceedings. By way of illustration, if a trial court holds by an interlocutory order that it has no jurisdiction to proceed with the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment of the plaint in the present case was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a)."

It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. The converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all, amendments of the pleadings would not amount to decisions on the issue involved. They would only serve advance notice to the other side as to the plea, which a party might take up. Therefore, it is not possible to envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party".

7. At the outset, it is to be noted that the ruling has been given by the Apex Court, in a case where the suit was filed claiming that the suit land originally belonged to one Durga Dass, who mortgaged the same to Sunder Dass and Udhey Ram, and the appellants and respondent Nos.2 to 5 therein, were legal heirs of Sunder Dass and Udhey Ram. When it came to the notice of the appellants that on the death of Durga Dass, the respondent, got his name mutated in the revenue records, the suit came to be filed for declaration of joint ownership of the land of the appellants and the respondent No.2 to 5 on the ground that neither Durga Dass nor his legal heirs could get the suit land redeemed within the statutory period and also for permanent injunction restraining the respondent No.1 i.e. decree holder from alienating the suit property. In the said suit, an application under Order 6 Rule 17 of C.P.C. for amendment of the plaint came to be filed on the ground that from a subsequent Civil Suit filed by the respondent No.1 against the appellants, it came to the knowledge of the appellants that the suit land was sold by Durga Dass to Sunder Dass and Udhey Ram, adjusting the mortgage amount and later on a pre-emption suit filed by Amar Nath, son of Kamal Krishna and another, which was decided in the year 1943 and it was declared that the plaintiffs in the suit on payment of certain amount within time specified by the Court, to Sunder Dass and Udhey Ram, the suit would stand decreed and in case of non-payment the suit would stand dismissed. The respondent no.1, was the son of Amarnath. It was stated in the amendment application that as the amount directed by the Court was not paid, there was no decree for pre-emption and the said suit stood dismissed and accordingly it was prayed for amendment of the plaint. The said application was allowed by the trial Court, but the order of the trial Court was set aside by the High Court on the ground that the appellants wanted to attack a decree passed in the year 1943 in a suit filed in the year 1999 and, therefore, it was barred by limitation. In the background of those facts the Apex Court held that, ".....from the facts extracted above, it would show that the appellants only wanted to bring to the notice of the Court subsequent facts and after amendment of the plaint, the respondent no.1 to get an opportunity to file written statement and therefore, each would be able to raise his defence. Ultimately, if the suit is decided against the respondent No.1, Dharam Dev, he would have a chance to take up this point before the appellate Court. It cannot be conceived of a situation that proposed amendment if allowed would cause irreparable injury or failure of justice as remedy of the respondent No.1, as said above, is by way of appeal." Apparently, the ruling quoted above, came to be delivered in the background of the peculiar facts of the case stated above. Apparently, that was a case where no fresh or new relief or new claims was raised by the party nor any case contrary to the decision already arrived at between the parties was sought to be introduced by way of amendment. The amendment was basically pertaining to the facts which were not within the knowledge of the party to the proceedings at the time of institution of the suit and till those were revealed to the parties subsequent to the institution of the Special Civil Suit against the appellants. Any decision is to be understood bearing in mind the facts of the case, the point which arise for determination and the finding arrived by the Court in relation to such point for determination. In that regard the decision of the Apex Court in the matter of Union of India and others Vs. Dhanwanti Devi and others reported in (1996) 6 SCC 44, is very clear. Considering the fact that the defendants, in the suit filed by the appellant and the respondent Nos.2 to 5 in the matter before the Apex Court, would get ample opportunity to raise all the points in the matter and considering the nature of controversy in that suit, it was held by the Apex Court that there was no case of any irreparable injury or failure of justice as such on account of allowing the appellant to amend the plaint by bringing on record the facts which had occurred in relation to the decree passed in the year 1943 in respect of the property which was subject matter of the suit filed by the appellant and the respondent Nos.2 and 3 therein. Considering the pleadings which were sought to be introduced by way of amendment, there was no case of any bar of limitation as such, as apparently, no relief had been claimed by the plaintiff therein pursuant to such amendment, but it was additional contention sought to be raised in relation to the relief already claimed, and to justify the said relief already asked for. That is not the case in hand. the respondents herein have sought to file an application for amendment raising plea of tenancy against the petitioner for first time after decision of the Apex Court on the issue of status of the respondent in the suit premises. Undoubtedly, the pleadings sought to be introduced in relation to alleged subsequent events are solely based on a rent receipt stated to have been issued on 31st December 1982. Admittedly, the application has been filed on 15th December 1988. The justification sought to be given for delay in filing the application is the pendency of the proceedings before the high courts. Being so, the issues regarding irreparable injury as well as applicability of proviso to sub-section 1 of section 115 of C.P.C. certainly assumes importance in as much as that if application for amendment was rejected, and certainly the proceedings not only in relation to the new issue sought to be raised by way of introduction of amendment would have come to an end but the entire proceedings would have stood disposed of and certainly, therefore, it cannot be disputed that the order in question if it had been in favour of the petitioner, would have certainly disposed of the proceedings and in that regard, the requirements of proviso to sub-clause (1) to Sec.115 of C.P.C. are certainly satisfied. Apparently, for the purpose of exercise of jurisdiction under Section 115 of C.P.C., it is not necessary that both the requirements under clauses (a) and (b) are to be satisfied and once it is clear that the interference in revisional jurisdiction is justified under clause (a), certainly the Revision Application would be maintainable.

8. Though the Courts have also been liberal for grant of amendment, and more particularly when the proposed amendments are necessary for effective adjudication between the parties and are relevant to the point in controversy between the parties. It is also necessary to consider whether any right has been accrued in favour of the opposite party, on account of delay on the part of the party seeking to amend the pleadings, and that such a right would be taken away if the prayer for amendment is allowed, and whether the amendment is necessary and relevant for just decision in the controversy between the parties in the matter. This is more so, when the party seeks to amend the pleadings on account of subsequent events. The Apex Court in Vallampati Kalvathi Vs. Haji Ismail reported in AIR 2001 SC 1441 on this point has observed that :

"While taking note of subsequent developments the authorities/Courts should keep in mind whether such material is relevant and can turn the balance in the case, the controversy should be decided with reference to the pleadings of the parties and the findings placed on record."

9. Apparently therefore, whether the proposed amendment is necessary for the appropriate decision on controversy in the matter, has to be considered while deciding the application for amendment in relation to subsequent events sought to be introduced by way of amendment.

10. In case of application for amendment, the Courts are required to be liberal in allowing the party to amend the pleadings with the intention to put an end to all the disputes between the parties relating to subject matter of the dispute. However, when the application is filed seeking to introduce, the facts which are alleged to have occurred subsequent to institution of the proceedings or during the pendency of the proceedings, it is necessary for the court to consider whether the facts which are sought to be introduced by way of amendment, are apparently relating to the events which have occurred subsequent to the initiation of the proceedings or during the pendency of the proceedings or a mere attempt to revive issue which has been already disposed of by the Court and which has attained finality. In the case in hand, it is the case of the respondents that they are in occupation of the front room of the premises as the sub-tenant, the petitioner being the main tenant, and that for said occupation he was contributing towards the rent payable to the landlord by the petitioner. It is also not in dispute that the petitioner was collecting money from the respondents for their occupation of the front room premises. In the back ground of these facts on record and the trial Court having adjudicated the issue as to whether the respondents are sub-tenant in relation to the premises in question and having answered the same in the negative and the same having been confirmed by this Court as well as by the Apex Court, and after the decision of the Apex Court, the respondents having approached the trial Court with the application for amendment that during the pendency of the proceedings there was new tenancy created in favour of the respondents by the petitioner, it was necessary to ascertain from the facts sought to be introduced by way of amendment, as to whether the same apparently relate to the events which have occurred subsequent to the institution of the suit and during the pendency of the proceedings. Bare reading of the impugned order discloses that the trial Court has not applied its mind to this aspect while allowing the application for amendment.

11. Referring to the provisions of Presidency Small Causes Court Act, 1882, it was sought to be contended in view of the fact that the trial Court had already held that the respondents are not tenant of the petitioner and the said finding having been confirmed by the High Court and the Apex Court, the only action which was required to be taken under the said proceedings is in terms of Sec.43, and that there was no occasion for the trial Court for entertaining application for amendment of the pleadings as such at that stage, and for any cause of action which might have been arisen subsequent to the order of the trial Court which was confirmed by the High Court and the Apex Court, the respondents could have sought remedy else where. Certainly, the point which is sought to be raised ought to have been considered by the Court below, while deciding the application for amendment and it is apparent from the reading of the impugned order that the same has not at all been considered by the Court below.

12. The proposed amendment relates to an act in the year 1983, as according to the respondents notice was issued on 7-2-1983 and, therefore, it is the case of the respondents that new tenancy was created in favour of the respondents in relations to the suit premises by the petitioner. The application for amendment seeking to raise defence against the prayer for eviction was filed only on 15th December, 1998. Apparently issue regarding whether any right has accrued and whether the same is sought to be taken whether by grant of application for amendment in the nature prayed for, ought to have been considered by the trial Court before granting said application and it is apparent from the impugned order that the same has not at all been considered.

13. It is, therefore, apparent that the Court below while allowing application for amendment has failed to apply its mind to the relevant aspect of the case, and to that extent has exercised his jurisdiction improperly, which warrants interference in the impugned order by this Court in the revisional jurisdiction. However, at the same time as rightly submitted by the learned Advocate for the respondents, once all the above relevant issues which ought to have been considered by the trial Court have not at all been considered, though on that ground the impugned order is liable to be set aside, it would not be appropriate for this Court to dismiss of the application for amendment at revisional stage but to give a fair opportunity to the parties to put forth their rival contention before the Court below and to direct the trial Court to pass an appropriate order after considering the rival contention in the matter. Considering the fact that the matter relates to the year 1972, it will be appropriate for the Court below to dispose of the matter as expeditiously as possible and certainly in relation to the application for amendment within a period of eight weeks from receipt of order by this Court.

14. Hence, Petition succeeds. The impugned order is hereby set aside and the matter is remanded to the trial Court to reconsider the application and to pass an appropriate order after hearing the parties and bearing in mind the observations made herein above, the law laid down by the Courts on the point regarding the exercise of jurisdiction while dealing with the application for amendment and more particularly in relation to the facts stated to have been occurred subsequent to the filing of the proceedings. Rule made absolute in above terms with no order as to costs.

Petition allowed.