spb/- 1 wp6909-6908-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 6909 OF 2010 Smt. Ratnaben Devjibhai Dedhia ... Petitioner. V/s. 1 Ambalal Maganlal Patel & Anr. ... Respondents. --- WITH CIVIL APPLICATION NO. 1800 OF 2011 IN W.P. NO. 6909 OF 2010 1 Ambalal Maganlal Patel & Anr. ... Applicants. v/s. Smt. Ratnaben Devjibhai Dedhia ... Respondent. --- WITH WRIT PETITION NO. 6908 OF 2010 Narendrakumar Devjibhai Dedhia ... Petitioner. V/s. 1 Ambalal Maganlal Patel & Anr. ... Respondents. --- WITH CIVIL APPLICATION NO. 1799 OF 2011 IN W.P. NO. 6908 OF 2010 1 Ambalal Maganlal Patel & Anr. ... Applicants. v/s. Narendrakumar Devjibhia Dedhia ... Respondent. --- spb/- 2 wp6909-6908-10.sxw Mr. Vijay Thorat,Senior Counsel i/by Mr. A.R.Pande for the Petitioner/s in the Writ Petitions and for the Respondent/s in the Civil Applications. Ms. R.C. Nichani for the Respondent/s in the Writ Petitions and for the Applicants in the Civil Applications. ----- CORAM : G. S. GODBOLE, J. DATE : 14th SEPTEMBER, 2011. P.C. : 1 Heard. These Writ Petitions have been already admitted by order dated 6th December, 2010 which reads thus : “1 Heard. 2 Learned counsel for the petitioner invited my attention to the judgment of a Division Bench of this court in the case of Sukhdev Prasad Raghubir vs. Rambhujarat Kshampati @ Rambhujarat Chhampati [1982 (1) Bom. C.R.832] and two other decisions of this court, one in the case of M/s. J.M.Constructions vs. Dr. Rustom P. Patel & Ors., [2008 Vol. 110(8) Bom. L.R. 2806] and other in the case of Laheribai J. Trivedi (since deceased) vs. Dharamdatta V. Trivedi & Ors. reported in 2010 (1) Bom. CR 870. 3 In view of the decisions cited above, prima facie case for admission is made out. Hence, Rule. 4 Rule on interim relief, returnable after eight weeks. In the meanwhile, ad-interim relief in terms of prayer clause (e)- (ii) of the petition. 5 Ms. Nichani, Advocate waives service for Respondents.” 2 Thereafter, the original Plaintiffs, the Respondents in the Writ Petition had filed C.A. Nos. 1799 of 2011 and 1800 of 2011 for vacating spb/- 3 wp6909-6908-10.sxw the interim relief and on 5.9.2011, the following order was passed in those Civil Applications : “By consent S.O. 12.09.2011. It is agreed that while hearing this CA, the main W.P. will also be immediately heard finally and simultaneously. To be listed in the “orders” caption only” . In these circumstances both the Writ Petitions are placed for hearing and are being take up for hearing. 3 I have heard in both the Petitions learned Senior Counsel Mr. V.A.Thorat for the Petitioner/s and Ms. Nichani for the Respondent/s. Since both the Petitions involve a common question of law and fact and since the Petitioner is common with the consent of the parties, both the Petitions are being heard and disposed of by a following common Judgment. 4 The Respondents have filed suits in the month of December, 2008 for eviction of the Petitioners from the suit premises on the ground of permanent construction, unauthorized additions and alterations and waste and damage etc.. The Written Statements were filed on 23rd January, 2009 and allegations/averments in the plaint were denied. It is not in dispute that prior to framing of issue i.e. prior to commencement of the spb/- 4 wp6909-6908-10.sxw trial on 5.5.2009, the Plaintiffs filed Application Exh. 16 in both the Suits for amendment of the plaint. In the suit, the case of the Plaintiffs is that after filing of the Written Statement, since the defence was raised by the Defendants that all alterations and constructions has been done strictly in accordance with the Plan sanctioned by the Planning -Authority, MCGM; the Plaintiffs applied for copies of the said documents and thereafter, according to the Plaintiffs, it was learnt that various illegalities and irregularities alleged to have been committed by the Defendants were noticed for incorporating which the Application for amendment was filed and the Schedule of Amendment sought to be inserted in Paragraph 11(a) to 11(g) and one prayer was sought to be added for mesne profits. This Application was opposed by the Defendant on various grounds. It was contended in the Reply that if the amendment was allowed, grave prejudice would be caused to the Petitioners. The averments which were sought to be incorporated by the proposed amendment were also disputed and it was contended that the construction is made strictly in accordance with the sanctioned Plan. A Rejoinder was filed by the Petitioners. 5 By Judgments and Orders dated 12.11.2009 the learned Judge of the Court of Small Causes allowed the Applications Exh. 16 and the spb/- 5 wp6909-6908-10.sxw Plaintiff was allowed to amend the Plaint with a finding that the proposed amendment was essentially in the nature of the adding further averments in respect of the case already pleaded in the plaint and that it was necessary for determining the real controversy between the parties. It was also held that no prejudice would be caused to the Defendants if amendment is allowed. 6 Revision Application Nos. 130/2009 and 131/2009 were filed in the Court of Small Causes and by the Judgment and Order dated 9.7.2010 both the Revision Applications have been dismissed. Those orders are impugned in the Writ Petitions. It appears that at the time of admission of the Petitions, on account of controversy as to whether the Revision Application under section 34 of the Maharashtra Rent Control Act, 1999 is maintainable for challenging an order granting amendment was the subject matter of two conflicting views. By referring to the said Judgments, the learned single Judge has admitted the Petitions and granted interim reliefs. However, in the present case, the Trial Court has allowed the Applications filed by the Plaintiffs and the Revisional Court has dismissed the Revisions filed by the Defendants. Hence, the larger issue whether the Revision Applications were maintainable or not need not be gone into in the facts of these cases. The correctness or otherwise spb/- 6 wp6909-6908-10.sxw of the Judgment of the Trial Court and that of the Revisional Court is being independently considered. 7 Mr. Thorat, learned Senior Counsel has advanced the following submissions : (i) Perusal of the proposed amendment will show that the same is argumentative and verbose and therefore, the same will cause substantial prejudice to the Defendants. (ii) The nature of the proposed amendment is essentially in the nature of evidence and hence, there was absolutely no need to make such amendment, (iii) if the proposed amendment is allowed, the Petitioner would be put to a grave prejudice since the nature of the amendment is such that the Petitioner would not be in a position to properly raise their defences. (iv) The proposed amendment essentially would result in changing the nature of the suit and in a suit for eviction between the Landlord and Tenant, the issue whether the building permission granted by the MCGM is valid or not would also be required to be gone into by the Trial Court. For all the aforesaid reasons, Mr. Thorat urged that the Trial Court had committed an error of jurisdiction in allowing the amendment. 8 Ms. Nichani supported the Judgments and Orders of the Trial Court and the Revisional Court and submitted that amendment was required on spb/- 7 wp6909-6908-10.sxw account of the fact that subsequent to the filing of the Written Statement, the Plaintiffs got the copies of the relevant Plans from the MCGM and pleadings in that regard were required to be made so that the Plaintiffs are not faced with a situation that their case is opposed on the ground of lack of pleadings. She also submitted that the amendments are in the nature of furnishing better particulars of the alleged illegalities committed by the Defendant and no prejudice would be caused to the Defendant. She also contended that without prejudice to the rights and contentions of the Defendant, the Defendant has already filed additional Written Statement and she ultimately submitted that in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India, no case for interference has been made out. 9 I have carefully considered the rival submissions. It is not in dispute that the Applications were filed prior to the commencement of the trial that is before framing of the issue and hence, there would be no legal bar for considering the Applications for amendment. The dispute in the suits is essentially regarding the nature of the construction and is whether the Defendants have carried out unauthorized structural constructions/alterations as claimed by the Plaintiffs. By the proposed amendment what is sought to be pleaded by the Plaintiffs is that spb/- 8 wp6909-6908-10.sxw alterations made by the Defendants are not in consonance with the Plans approved by the MCGM and various further averments regarding alleged illegalities committed by the Defendants are also sought to be added. It is thus clear that the amendment was required for deciding the real controversy involved in the suit. It is also clear that the amendment sought to give further and better particulars to supplement/ support the pleadings which were already on record. The submission of Mr. Thorat that the amendment is in the nature of the evidence and hence, should not be allowed also does not have merit. Law does not require evidence to be pleaded but there is no prohibition if by way of abundant precaution a Plaintiff wants to plead something which may be argued to be in the nature of evidence and it cannot be held that the Trial Court had no jurisdiction to give an opportunity to the Plaintiffs who want to incorporate pleadings, even if those are in the nature of the evidence proposed to be led in support of the case. Merely because amendment is allowed, the correctness of the averments is not accepted by the Trial Court and the parties will have ample opportunity to lead evidence in that regard when the trial commences. In my opinion, absolutely no prejudice is caused to the Petitioners by grant of the proposed amendment. No error of jurisdiction has been committed by the Trial Court or by the Revisional Court. The question as to whether Revision was spb/- 9 wp6909-6908-10.sxw maintainable or not has not been gone into in this Petition in the peculiar facts and circumstances of this case. Since the additional Written Statements are also already filed, no further direction is required. 10 Hence, I pass the following order. (a) Rule discharged. Interim orders passed on 6th December, 2010 stands vacated. (b) In view of the above order, the Civil Application Nos. 1800/2011 and 1799/2011 filed by the original Plaintiffs do not survive and the same are also disposed off. [G.S.GODBOLE, J.] .....