2012(1) ALL MR 804
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

G.S. GODBOLE, J.

Shri Dhanaji Kashinath Shendkar Vs. Shri Khemchand S. Chawla & Ors.

Writ Petition No.3848 of 2011,Writ Petition No.3849 of 2011,Writ Petition No.3856 of 2011,Writ Petition No.4001 of 2011,Writ Petition No.4007 of 2011

14th September, 2011

Petitioner Counsel: Mr. V. Y. SANGLIKAR
Respondent Counsel: Mr. HARISH R. PAWAR, Ms. YASMIN E. TAVARIA

(A) Civil P.C. (1908), O.6 R.17 - Amendment to plaint - Subsequent events - Amendment which is necessitated and is essential on account of subsequent events must be allowed.

(1978) 2 SCC 91 Rel. on. (Para 19)

(B) Civil P.C. (1908), O.6 R.17 - Amendment - Suit for declaration of tenancy - Plea sought to be introduced regarding tenancy of open land - Can be allowed to be introduced by amendment. (Paras 18, 21)

(C) Civil P.C. (1908), O.6 R.17 - Amendment of plaint - Inconsistent plea sought to be introduced - Proposed amendment, however, not likely to change nature or character of suit and would be necessary for proper adjudication of suit - Amendment must be permitted - Respondents can file their additional written statement and oppose averments sought to be added by amendment. (Para 20)

Cases Cited:
Baldev Singh and Ors. Vs. Manohar Singh & Anr., 2006(5) ALL MR 107 (S.C.) =(2006) 6 SCC 498 [Para 11]
Vannattankandy Ibrayi Vs. Kunhabdulla Hajee, 2001(1) ALL MR 548 (S.C.) =(2001) 1 SCC 564 [Para 11,15,16]
Revajeetu Builders & Developers Vs. Narayanaswamy & Sons, 2009(6) ALL MR 986 (S.C.)=(2009) 10 SCC 84 [Para 12,18,21]
Hind Rubber Industries Pvt. Ltd., Vs. Tayebhai Mohammedbhai Bagasarwalla & Ors., 1996(3) ALL MR 644 =1996 (4) Bom.C.R. 414 [Para 16]
T. Laxmapathi & others Vs. P. Nithyananda Reddy & others, 2003 (5) SCC 150 [Para 16]
Ganesh Trading Co., 1978 (2) SCC 91 [Para 19]


JUDGMENT

JUDGMENT :- In all these Petitions, on 9th June, 2011 following orders are passed :

"1 Issue notice before admission, returnable on 27th June, 2011. Humdast permitted. Private service permitted.

2 Notice to state that the petition shall be finally disposed of at the stage of admission.".

Accordingly the Respondents are served. Respondent No.3 was also served and he was again served pursuant to the order dated 30thAugust, 2011. Hence, Rule. Rule made returnable forthwith. Mr. Pawar appears for Respondent Nos. 1 and 2. Smt. Yasmin E. Tawaria appeared for Respondent No.3. By consent of the parties, these Petitions are taken up for hearing forthwith.

2. Since common questions of law and facts are involved in all the Petitions, the same are being heard and disposed off by this common Judgment. The controversy involved in the Writ Petitions is short, namely, whether the Plaintiffs in different suits, which are identical, should be permitted to amend their plaint, which amendment, according to them was necessitated on account of subsequent events, namely, the fire which broke out on 2.6.2008. The Trial Court has dismissed all the Applications for amendment and the Division Bench of the Court of Small Causes has dismissed the Revision Applications filed by the original Plaintiffs/ Petitioners and hence, the present Writ Petitions have been filed.

3. Mr. Sanglikar appearing for the Petitioners invited my attention to the plaint and pointed out that it was the case of the Plaintiffs in all the suits that they are tenants in respect of the premises admeasuring about 500 sq.ft in the larger premises known as Kamani Oil Mills, Peru Chaw Compound which are situated at Mumbai. He pointed out the averments in the Application for amendment and the Schedule of Amendment and according to Mr. Sanglikar on account of the subsequent development, namely, fire which broke out on 2.6.2008, the amendment was necessitated. I deem it necessary to reproduce ScheduleI to the Application so as to appreciate the controversy involved in the Petitions in proper perspective.

SCHEDULE

1 The following be allowed to be added as paragraph 14A to the Plaint :

"Plaintiff states that on 2nd June, 2008 a fire broke out in the Kamani Oil Mill premises causing extensive damage to the suit premises. Although walls of the suit premises are there, the roof was destroyed. Plaintiff states that it is cardinal principal of law that on demolition or damage of the tenement by flood, fire, water etc., the tenancy of the tenant continues in respect of the land under such tenement. In the present case although the suit premises are damaged in fire, the right of the Plaintiff as tenant continues. Also the right of tenancy continues in respect of the suit land and the Plaintiff cannot be dispossessed therefrom without following due process of law. Plaintiff states that after the said fire took place, Defendants who are hands in glove are threatening to dispossess the Plaintiff and take forcible possession of the suit land. Plaintiff says that he is still in possession of the suit land and his goods are lying there. Plaintiff further submits that on 14th June, 2008 at about 8 P.M. the Defendants employees and some anti social elements came to the suit land and tried to remove the Plaintiff and his goods therefrom. There was fight between Plaintiff and Plaintiff's employees on one side and Defendants employees and security men on the other side. However, Defendants could not succeed in taking forcible possession of suit land from Plaintiff. The police did not record complaint of the Plaintiff and sided with the Defendants as the Defendant had managed with the police. The Defendants and their employees threatened that they would come any time and take forcible possession of the suit land by getting Plaintiff arrested in a false criminal case. In view of the fact above, the amendment to the Plaint and to the interlocutory notice pending in this Hon'ble court is required to be allowed and further protection to the Possession of the Plaintiff be granted urgently.

2 The following be allowed to be added as in prayer (a) after word "500" sq.ft. :

"and the land thereunder"

3 Before the word "without following due process of law" in prayer clause (b) to the Plaint and prayer clause (a) to the Interlocutory notice"

"and the land thereunder"

4 All further and consequential amendment be allowed."

4. The Application was opposed by the Defendants by filing their respective replies. The Defendant Nos. 1 and 2 filed reply, raising various objections and in the said reply it is stated as under :

"(c) That, on or about 02nd June, 2008, the Larger Premises was gutted by a major fire whereby major part of the Larger Premises more particularly the Temporary Premises was damaged and mostly all furniture, fixtures, and other materials (i.e. property) worth Lakhs lying in the Larger Premises were destroyed/burnt in the said blaze/fire. ....."

5. The Plaintiffs' claim was also challenged and it was further contended that the Court does not have jurisdiction to try and entertain the suit. It was stated that since the suit premises is destroyed due to fire, nothing survives in the suit and hence, amendment may not be allowed. A rejoinder was filed by the Plaintiffs. The Defendant No.3 also filed an Affidavit-In-Reply which apart from taking up more or less the same defense as taken up by the Defendant Nos. 1 and 2, also sought to contend that the Plaintiffs have absolutely no right whatsoever and the so-called rights claimed by the Plaintiffs are not accepted by the Defendant No.3 and that the persons who created alleged right in the Plaintiff had no authority to do so.

6. It is necessary to note that earlier by order dated 20.11.2008, the learned Judge of the Small Causes Court partly allowed the Application for amendment and the amendment sought by prayer clause (a) was granted and that sought by prayers (b) & (c) were rejected. These orders alongwith the earlier order passed in one more suit were challenged in this court by filing Writ Petition Nos. 596/2009, 597/2009, 603/2009, 604/2009 and 638/2009, which were disposed off by a common Judgment and Order dated 22nd January, 2009 by the learned single Judge A.M. Khanwilkar, J. The learned single Judge felt that it was necessary to consider whether the proposed amendment would be hit by the provisions of Order 2, Rule 2 of the Code of Civil Procedure, 1908. The Trial Court was directed to re-hear the Applications for amendment on their own merits, keeping in mind the rigorous of Order 2, Rule 2. After remand, by the Judgment and Order dated 20th January, 2010 the learned Judge of the Trial Court decided all the Applications afresh. In so far as the argument of the Respondents regarding bar of Order 2, Rule 2 of the Code is concerned, the learned Judge has recorded following findings in paragraphs 22 and 23, which read thus :

"22. After going through Order II Rule 2 of the CPC the Plaintiff is precluded from bringing the suit on the same cause of action which is arose at the time of filing of the first suit. It is fact that the plaintiff has not filed separate suit. But he intends to amend the plaint. As per the authorities relied upon by the ld. advocate for the plaintiff, it shows that Order II Rule 2 of the CPC is applicable if subsequent suit is filed on the same cause of action. As per the authority AIR 1976 Gujarat 60 if claim has been omitted by inadvertence then he can amend the plaintiff in the same suit and therefore, it has been held that Order II Rule 2 of the CPC is not applicable. 23. In the present case the plaintiff is not filing the separate suit, but he is claiming amendment in the suit itself. Therefore, relying on these authority AIR 1976 Gujarat 60, I find that in the present case Order II Rule 2 of the CPC is not applicable. Therefore, it can be said that the plaintiff can amend the plaint due to subsequent events.".

7. It is, therefore, clear that the Trial Court held that there would be no bar of Order 2 Rule 2. However, the Application was rejected on the ground that if the amendment is allowed that will change the nature of the Suit and that the Plaintiffs would be allowed to introduce a new case, which is not permissible. Conclusion drawn by the Trial Court can be carved out from paragraph 26, which reads thus :

"In the present case the plaintiff wants to amend the plaint by showing description of the suit premises is open land under the structure which he has already not pleaded. The defendants came with the case that due to fire the structure was destroyed and plaintiff has not right in the alleged tenanted premises.

On this background the plaintiff want to amend the plaint. There is no dispute that if the premises is destroyed due to natural calamities tenant has no right in the tenanted premises. If this is so then if the plaintiff's amendment is allowed and plaintiff is permitted to claim that he is tenant in the land under the suit structure then it cause prejudice to the defendants. The defendants have already raised the defence and therefore, to give go by to the defendants; defence, the plaintiff want to introduce this new theory. The plaintiff cannot plead new and inconsistent case. The amendment seeking to introduce new case is not permissible. If this amendment is allowed, it will change the nature of the suit premises. Even though the plaintiff's claim same relief of declaration of his tenancy right and if amendment is allowed his claim in the land and as defendants' defence under the Maharashtra Rent Control Act, if the plaintiff wants to claim right on land then the Maharashtra Rent Control Act is not applicable. Therefore, in these circumstances, I find that this amendment application is liable to be dismissed. Hence, I proceed to pass the following order :

ORDER

The application is dismissed. No order as to cost.".

8. Revision Applications filed by the Petitioners were heard by the Division Bench of the Court of Small Causes at Mumbai. In so far as the question of applicability of Order 2 Rule 2 is concerned, the conclusion was recorded in paragraph 14 by the Division Bench of the Small Causes Court which reads thus :-

"14. As regards the application of Order 2 Rule 2 is concerned the Plaintiff is claiming amendment in the same suit. Order 2 Rule 2 of the Civil Procedure Code reads as follows :

"1. ...............

2. Every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court".

Plain reading of Order 2 Rule 2 of the Civil Procedure Code reveals that where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted by him. In present case there is no question of second suit being filed by the Plaintiff in respect of land under the suit premises claiming his tenancy rights. Hence, provisions of Order 2 Rule 2 of Civil Procedure Code are not applicable to the present case.".

9. However, by holding that the order, dismissing the Application for amendment is procedural order, it was held that a Revision is not maintainable. After holding this, the Division Bench has recorded the following conclusions in paragraph 16 :

"16 The Trial Court has appreciated the facts and provisions of law in correct perspective and has come to the correct conclusion and rightly rejected the amendment application and hence no interference is called for in the order of Learned Trial Judge, accordingly we answer Point Nos. 1 and 2 in the negative and proceed to pass the following order :

ORDER

Revision is dismissed with costs.

The order of Trial Court dated 20.01.2010 passed in Exhibit 17 in R.A.D. Suit No. 605 of 2008 is hereby confirmed.".

10. Mr. Sanglikar submitted that question of applicability of Order 2 Rule 2 has been held in favour of the Petitioners by the two courts. Mr. Sanglikar submitted that according to the Petitioners, the entire suit premises have not been destroyed and what has been destroyed is the roof in the fire which admittedly erupted on 2nd June, 2008. Mr. Sanglikar submitted that even in the original suit, the Plaintiffs had prayed for a declaration of the tenancy and the amendment was necessitated on account of subsequent development, which subsequent development is admitted. According to Mr. Sanglikar, the question whether the entire suit premises is destroyed or whether only roof is destroyed, as contended by the Plaintiff is a disputed question of fact which will have to be gone into at the stage of trial. It is also submitted that even raising of an inconsistent plea is permitted though according to the Plaintiffs, present plea which is sought to be raised by amendment is not inconsistent plea but the same is in consonance with the original plea.

11. On behalf of Respondent No.3, Ms. Yasmin Tavaria, Advocate opposed the petition by advancing the following submissions :

(a) By seeking to rely upon photographs, stated to be of different suit premises and report of the Fire Department of MCGM stated to be in respect of the suit premises, it was submitted that the entire suit premises have been destroyed in the fire and the suit premises are not in existence at all. The report of the Court Commissioner was also sought to be relied upon for this purpose. It was, therefore, submitted that the amendment, if allowed, would completely change the nature of the suit and cause prejudice to the Defendant No.3. Heavy reliance was placed on the Judgment of the Supreme Court in the case of Baldev Singh and Ors. vs. Manohar Singh & Anr. (2006) 6 Supreme Court Cases 498 : [2006(5) ALL MR 107 (S.C.)], in particular the observations made in paragraphs 9 and 15 of the said Judgment.

(b) Ms. Tavaria also relied upon the observations made by the Supreme Court in the Judgment in the case of Vannattankandy Ibrayi vs. Kunhabdulla Hajee (2001) 1 Supreme Court Cases 564 : [2001 (1) ALL MR 548 (S.C.)], and particularly in paragraph 20 of the said Judgment and it was contended that since according to the Respondents, the suit premises are completely destroyed the suit does not survive and in such a case, there is no question of permitting amendment.

(c) It was alternatively submitted that since the Plaintiffs have no right, title or interest in the suit premises their plea of amendment should not be allowed.

12. Mr. Pawar, Advocate appearing for the Respondent Nos. 1 and 2 supported the submissions of the learned Advocate for the Respondent No. 3 and it was additionally submitted by him that under the provisions of Maharashtra Rent Control Act, 1999, "open land" was not included within the definition of the word "premises" under sections 7 (9) of the said Act and since the petitioners are now seeking to claim the tenancy rights even in respect of the open land, to which the Maharashtra Rent Control Act, 1999 does not apply; such a plea cannot be allowed to be raised by an amendment. It was also submitted that a completely new case was sought to be made out, which is inconsistent with the original case pleaded in the plaint, and thus original cause of action is being displaced and the entire nature of the suit will change. Reliance was placed on the Judgment of the Supreme Court in the case of Revajeetu Builders & Developers vs. Narayanaswamy & Sons, (2009) 10 Supreme Court Cases 84 : [2009(6) ALL MR 986 (S.C.)], the conclusions drawn in paragraphs 63 of the said Judgment. The said conclusions read thus :

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment :

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bonafide or malafide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

13. In Rejoinder Mr. Sanglikar submitted that according to the Petitioners the entire suit premises are not destroyed and therefore, there is no question of the tenancy getting extinguished. According to Mr. Sanglikar, the observations of the learned Judge of the Trial Court that if the suit premises are destroyed, the tenancy admittedly comes to an end is not legally correct and such will not be the correct legal position. Mr. Sanglikar also submitted that according to the Petitioners, the cause of fire is suspicious and according to Mr.Sanglikar, the report of the Fire Department also indicates that the cause of fire is suspicious. According to him, for the purpose of deciding the Applications for amendment this court is not required to go into the report or the cause of fire and since according to him, the reasons for fire are not relevant for consideration of an application under Order 6, Rule 17 of the Code, the Court need not consider this submission any further.

14. I have carefully considered the rival contentions. In the first place, in so far as the question of applicability of bar of Order 2 Rule 2 of the Code of Civil Procedure,1908 is concerned, in my opinion, the learned Judge of the Trial Court has rightly referred to the Judgment of the Gujarat High Court and held that bar of Orders 2, Rule 2 is not attracted. Similarly, the Division Bench while hearing Revision Applications has rightly concluded that the bar of Order 2 Rule 2 of the Code of Civil Procedure Code, 1908 will not be attracted in the facts and circumstances of the present case. Said observations and conclusions are approved.

15. The amendment was sought to plead about the subsequent events. The fact that a fire had broken out on 2nd June, 2008 is not disputed. Rest of the questions whether the entire premises are destroyed and/or whether only a portion of the suit premises was destroyed are the questions of fact which will have to be decided by the Trial Court after considering the oral and documentary evidence to be led by the parties. At this stage it is not possible to enter into that controversy, though as stated above, the learned Advocate for the Respondent No.3 wanted this court to go into that controversy and record a finding to that effect. For the same reasons, in the absence of any findings having been recorded by the Trial Court, it would not be possible to dismiss these Writ Petitions by relying upon the Judgments of the Supreme Court in the case of Vannattankandy Ibrayi, [2001 (1) ALL MR 548 (S.C.)] supra.

16. However, at this stage, I deem it fit to notice the fact that in paragraphs 23 of its Judgment in the case of Vannattankandy Ibrayi, [2001 (1) ALL MR 548 (S.C.)] supra, the Hon'ble Supreme Court has dis-approved the view taken by this Court in the case of Hind Rubber Industries Pvt. Ltd., vs. Tayebhai Mohammedbhai Bagasarwalla & Ors., 1996 (4) Bom. C.R. 414 : [1996(3) ALL MR 644]; whereas in the subsequent Judgment of the Supreme Court in the case of T. Laxmapathi & others vs. P. Nithyananda Reddy & others, 2003 (5) SCC 150, the contrary view is taken. In fact in paragraph 24 of the said Judgment, the Judgment of this Court in Hind Rubber Industries supra has been approved by the Supreme Court.

17. However, at this stage unless the parties are allowed to lead evidence, it would be unsafe to reach any conclusion in this regard. All the contentions of the parties in this regard will have to be and are expressly kept open to be re-agitated before the Trial Court.

18. The Judgment of the Supreme Court in the case of Revajeetu Builders & Developers, [2009(6) ALL MR 986 (S.C.)] supra, summarizes the entire law of precedents regarding the exercise of the power under Order 6 Rule 17 of the Code of Civil Procedure, 1908. A bare perusal of the said Judgment and the principles laid down therein would show that instead of supporting the submissions of the Respondents, the said Judgment supports the case of the Petitioners. Mr. Pawar would, however, urge that if the proposed amendment is allowed that would fundamentally change the nature and character of the case. I do not agree. The suit is filed for declaration, claiming tenancy. Whether the Plaintiffs are tenants or not and whether the Respondents are Landlords or not, what is status of the Plaintiffs and Respondents etc., are all question which can be gone into by the Trial Court. In so far as the argument regarding exclusion of open land from the purview of the definition of the word "premises" under section 7(9) of the Maharashtra Rent Control Act, 1999 is concerned; that would not be a ground to refuse amendment but it is for the Trial Court to decide as to whether the Act applies or it does not apply. Even if it is assumed that the pleadings can change the plaintiffs' case; which, according to the Plaintiffs do not change; that would not be a ground to reject the amendment. If the Plaintiffs fail to prove their case or if the Court after recording evidence comes to the conclusion that it does not have jurisdiction that is the matter for the Court to decide after trial when question of grant or refusal of the relief would be considered. More so in the city of Mumbai; in view of section 41 of the Presidency Small Causes Court Act, 1882; the Small Cause Courts would alone have jurisdiction to entertain the dispute between the parties as all suits between Landlord and Tenant and Licensor and Licensee are exclusively triable by that Court. At the initial stage the Plaintiffs have gone to Court, claiming that they are tenants. According to the Plaintiffs the Defendants are landlords. Hence, even assuming that the Plaintiffs are trying to incorporate amendment in respect of a claim for "open land"; that could not have been a ground for rejecting amendment.

19. It is well settled that the amendment which is necessitated and is essential on account of subsequent events, must be allowed. All the controversies between the parties to the suit in respect of premises involved in the suit must be allowed to be adjudicated upon and for that purpose the amendment, if necessary, has to be allowed. In the case of Ganesh Trading Co., 1978 (2) SCC 91, the Supreme Court has observed thus:

"5. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should, ordinarily refuse prayers of amendment of pleadings."

20. In the present case, in my opinion, no prejudice would be caused to the Respondents if the Plaintiffs are allowed to amend the plaint. Even an inconsistent plea can be allowed to be introduced by amendment. The plea sought to be introduced is regarding tenancy of open land which cannot be held to be inconsistent. Assuming it to be an inconsistent plea which is sought to be introduced, the same cannot be considered to be a claim which is mutually exclusive vis-a-vis the claim originally made in the plaint. In my opinion, the proposed amendment would not change nature or character of the suits and it would be necessary for proper adjudication of the suits. Since the amendment is made after the fire erupted on account of subsequent events, no malafides can be attributed to the Plaintiffs. In my opinion, no prejudice would be caused to the Respondents if the amendment is allowed. The Respondents can always file their additional written statements or amend their existing written statements and oppose the averments which are sought to be added by amendment in the plaint.

21. In my considered opinion, the amendments sought by the Plaintiffs are permissible on the touchstone of all the tests laid down by the Supreme Court in the case of Revajeetu Builders & Developers vs. Narayanswamy & Sons (2009) 10 SCC 84 : [2009(6) ALL MR 986 (S.C.)] supra. This was a fit case where amendment should have been allowed and the Trial Court has not only committed an error in exercising the jurisdiction vested in it but has refused to exercise the jurisdiction conferred by Order 6 Rule 17 of the Code, which error, if not corrected will lead to failure of justice. Hence, a case for interference under Article 227 of the Constitution of India has been made out.

22. It is needless to state that all questions on merits of the controversy between the parties are expressly kept upon and have not been decided and the Trial Court should decide the said issues on merits and without being influenced by any of the observations made either in the impugned Judgments and Orders or in this order.

23. Subject to the aforesaid clarification, Rule is made absolute in terms of prayer clause (a) in all the Writ Petitions. Amendment to be carried out within eight weeks from today.

24. At this stage, at the request of the learned Advocates for the Respondents, this order is stayed and all further proceedings in the suit are also stayed for a period of eight weeks to enable them to challenge this order.

Petition allowed.