1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5710 OF 2009 Gautam s/o Kastursa Sawji, Age: 65 years, Occ: Business, R/o. Supari Hanuman Road, Aurangabad. .. Petitioner Versus Babulal s/o Parashram Patel, Died Through his LR's. 1. Sau.Vijaya w/o Harikishan Tambakhuwala, Age: Major, Occ: Household, R/o. Supari Hanuman Road, Aurangabad & Ors. .. Respondents ... Mr. R.F. Totla Advocate for petitioner. Mr. V.K. Patni, Advocate holding for Mr. R.C. Kulkarni, Advocate for respondents. ... CORAM : K.K. TATED, J. DATE : 28TH AUGUST, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. 2 Heard learned Counsel for the petitioner and learned Counsel for respondents. By consent, matter is taken up for final hearing at admission stage. 2. By this petition under Article 226 and 227 of the Constitution of India, the petitioner is challenging a common order dated 01-08-2009 passed by the Principal District Judge, Aurangabad below Exhibit-23 and Exhibit-24 in Rent Appeal No. 3/2009 by which the original defendant's application at Exhibit-23 for amendment of Written Statement under Order 6 Rule 17 of the Code of Civil Procedure and application at Exhibit-24 for permission to lead additional evidence at appellate stage, under Order 41 Rule 27 of the Code of Civil Procedure, came to be rejected. 3. A few facts of the matter are as under. . The respondent - original defendant filed 3 Rent Case No. 90/1985 in the Court of Rent Controller, Aurangabad against the petitioner for eviction from the shop bearing Municipal No. 2-15-59 (new 4-7-78) situated at Supari Hanuman road, Aurangabad under Section 15 of Hyderabad Houses (Rent, eviction and lease) Control Act. The petitioner filed his Written Statement in the said Rent Suit on 20-02-1987. During the pendency of the Rent Suit, the petitioner filed application dated 21-04-2006 for amendment of W.S. under Order 6 Rule 17 of the Code of Civil Procedure. Said application came to be dismissed by order dated 01-12-2008 by the learned Rent Controller, Aurangabad. Said rejection order was challenged by the petitioner in this Court by preferring Writ Petition No. 7693/2008 on 12-12-2008. In the said Writ Petition, this Court (Coram : N.D. Deshpande, J.) passed interim order on 23-12-2008 which reads as under. "1. Heard Shri.Sarosiya, 4 learned counsel for the petitioner. 2. Notice returnable on 15th January 2009. 3. There is a suit pending before the trial Court. As told by learned counsel for the petitioner, the suit is at the stage of recording of evidence of defendant, who is petitioner here. The petitioner has prayed for adjournment before the lower court stating that present Writ Petition is pending for hearing on admission on the point of rejection of his application for amendment. The petitioner is a defendant. No stay can be ordered since the matter is part heard and for recording evidence of the defendant. Defendant shall cooperate by leading evidence and trial will take its own course and in case amendment is allowed, the defendant shall be at liberty to adduce additional evidence to substantiate his case by way of additional pleadings. Hence, no interim relief." Thereafter, said Writ Petition came to be dismissed as in fructuous on 16-01-2009 by order this Court (Coram: Naresh H. Patil, J.). Said order reads as under. 5 " The learned counsel appearing for petitioner submits that the petition has become in fructuous and the same be disposed of. 2. In view of the statement made by counsel for petitioner, the petition is dismissed as infructuous." 4. In the meanwhile, Rent Controller, Aurangabad allowed Rent Case No. 90/1985 by judgment dated 09-01-2009. Thereafter, the petitioner preferred Rent Appeal No. 3/2009 before the Hon'ble District Judge, Aurangabad. In the said Appeal, the petitioner preferred application dated 16-07-2009 Exhibit-23 for amendment of W.S. under Order 6 Rule 17 and application Exhibit-24 under Order 41 Rule 27 of the Code of Civil Procedure for permitting the petitioner to lead additional evidence in Appellate Court in respect of documents. Applications Exhibit-23 and 24 were dismissed by the Principal District Judge, Aurangabad on 01-08-2009. Therefore, the petitioner preferred 6 present Writ Petition under Article 226 and 227 of the Constitution of India. 5. It is the case of the petitioner that after filing W.S. on 20-02-1987 he learnt that son of deceased original plaintiff - landlord namely Pramod Babulal Patel is running Small Scale Industry under the name and style "Patel Engineering and Fabricators" situated at E-52B-122, M.I.D.C. Chikalthana, Aurangabad C/o. Tiny Industries Co.op. Industrial Estate Ltd. Aurangabad since 6 to 7 years back. Therefore, the petitioner decided to bring these facts on record by amendment of their W.S. and also by bringing some documents on record. The petitioner also preferred application under Order 41 Rule 27 of the Code of Civil Procedure for bringing additional documents on record to show that ground of bonafideness of the respondent - original landlord no more existed. 6. Learned Counsel appearing on behalf of the 7 petitioner submitted that the appellate Court has discussed merits of the amendment which is not permissible in law and it is settled principle of law and as such, on that ground also, impugned order is not correct in the eyes of law. He further submitted that those documents were already filed by him before the trial Court but same were not taken on record and during the pendency of earlier Writ Petition No. 7693/2008, judgment came to be passed in Rent Suit. Thereafter, petitioner preferred appeal and in the said appeal, the petitioner specifically raised several grounds on the basis of additional documents and information discovered by the petitioner about bonafide requirements of respondent and therefore, the appellate Court erred in coming to the conclusion that the petitioner filed application for amendment at belated stage and there is no merits in those applications. He further submitted that the appellate Court erred in coming to the conclusion that the petitioner was 8 not diligent in preferring application for amendment of W.S. as well as for bringing additional documents on record. He submitted that the petitioner preferred application for amendment of W.S. under Order 6 Rule 17 of the C.P.C. before the Additional Rent Controller at Aurangabad on 21-04-2006 as soon as he learnt about the Small Scale Industry owned and run by the respondent. 7. In support of his contention, learned Counsel appearing on behalf of the petitioner relied on the judgment in the matter of Chander Kanta Bansal vs. Rajinder Singh Anand reported in 2008)6) Mh.L.J.161. In that case, Apex Court interpreted the word "due diligence". The Apex Court held that the word 'diligence' means careful and persistent application or effort. Learned Counsel appearing on behalf of the petitioner submitted that as soon as they learnt about Small Scale Industry owned by respondent, 9 they immediately filed application under Order 6 Rule 17 of the C.P.C. for amendment of their W.S. Learned Counsel appearing on behalf of the petitioner further relied on the judgment in the matter of Smt. Bharati P. Heble and others vs. Shri. Zoivanta Jagananta Sina Amonkar (Deceased through Lrs) reported in 2009(1) ALL MR 402. In that case, Bombay High Court held that subsequent events in Rent Act Cases can be considered for deciding the case on merits. Head Note B of this judgment reads as under. "(B) Procedural Law- Subsequent events-When could be taken notice of-Circumstances stated." Learned Counsel appearing on behalf of the petitioner also relied on the judgment in the matter of Pasupuleti Venkateswarlu vs. The Motor & General Traders, reported in AIR 1975 SC 1409. In this case, Hon'ble Supreme Court held that subsequent events can be considered for deciding 10 the issue in respect of Rent Act matters. Head Note A of that judgment reads as under. "(A) Civil P.C. (1908) o.7 R. 7, S.115-Subsequent events- Power of Revisional Court to take cognisance of-Proceeding under Rent Control Act by landlord from seeking eviction- High Court in revision is bound to take note of subsequent event, in disposing of proceeding. (A.P. Building (Lease, Rent & Eviction) Control Act (1960). S. 10(3)(iii)." He also relied on the judgment in the matter of Vineet Kumar vs. Mangal Sain Wadhera, reported in AIR 1985 SC 817. In this case, Hon'ble Court held that normally amendment is not allowed if it changes the cause of action. But, where amendment does not constitute an addition of a new cause of action or arise a new cause, then amendment would be allowed even after statutory period of limitation. Para. 16 of the said judgment reads as under. 11 "16. Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendments would be allowed even after the statutory period of limitation. The question in the present case is whether by seeking the benefit of s.39 of the new Act there is a change in the cause of action. In A.K. Gupta & Sons. v. Damodar Valley Corporation (1966) 1 SCR 796 : (AIR 1967 SC 96) this Court dealing with the cause of action observed as follows (at P.98 of AIR): "The expression "cause of action" in the present context does not mean every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooks v. Gill(2) in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in 12 Rabinson v. Unicos Property Corporation Ltd.(1962)(2 All ER 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile." 8. It is the case of the petitioner that subsequent events discovered by him that respondent is holding Small Scale Industry will definitely be helpful to the appellate Court for deciding the matter on merits because respondent filed their Rent Suit on the ground of bonafide requirements of their own purpose. If these documents are taken on record the petitioner will be in a position to justify that respondent is having alternate accommodation to start their own business and as they started and therefore, the judgment and decree passed in Rent Suit No. 90/1985 can be set aside. Therefore, it is necessary to bring those documents as well as amendment on record. On this point, he also relied on the judgment in the matter of B.K. Pillai vs. P. Pillai and another, reported in 13 AIR 2000 SC 614. In that case, Apex Court held that the application for amendment of W.S. under Order 6 R 17 of the C.P.C. cannot be rejected merely on the ground of prolonged delay in filing, especially when the plaintiff can be compensated by costs. Para 5 of the said judgment reads as under. "5. In the appeals the appellant-defendant wanted to amend the written statement by taking a plea that in case he is not held a lessee, he was entitled to the benefit of Section 69(b) of the Indian Easements Act, 1882. Learned Counsel for the appellant is not interested in incorporation of the other pleas raised in the application seeking amendment. The plea sought to be raised is neither inconsistent nor repugnant to the plea already raised in defence. The alternative plea sought to be incorporated in the written statement is in fact the extension of the plea of the respondent-plaintiff and rebuttal to the issue regarding liability of the appellant of being dispossessed on proof of the fact that he was a licencee liable to be evicted in accordance with the provisions of law. The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his 14 prayer particularly when the respondent-plaintiff could be compensated by costs. We do not agree with the finding of the High Court that the proposed amendment virtually amounted to withdrawal of any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent." 9. Learned Counsel appearing on behalf of the petitioner also relied on the authority in the matter of Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, reported in AIR 1969 SC 1267 in which the Apex Court held that the amendment of plaint under Order 6 Rule 17 of the C.P.C. should not be refused on technical grounds. On the basis of these submissions, learned Counsel appearing on behalf of the petitioner states that impugned order passed by the Principal District Judge, Aurangabad below Exhibit-23 and Exhibit-24 in Rent Appeal NO.3/2009 dated 01-08-2009 to be set aside and applications below Exh.23 and 24 to be allowed. 15 10. On the other hand, learned Counsel appearing on behalf of the respondent - original plaintiff's legal heirs submitted that the Principal District Judge, Aurangabad considered all facts on record and after recording reasons for the same, rejected both the applications below Exh. 23 and 24. Therefore, there is no question of interfering in the said order dated 01-08-2009 in the present Writ Petition under Article 226 and 227 of the Constitution of India. He further submitted that very limited scope is provided under Article 226 and 227 of the Constitution of India to interfere in interlocutory orders passed by the subordinate Courts. 11. In the present case, initially the petitioner preferred similar application on 21-04-2006 before the Additional Rent Controller, Aurangabad and same came to be rejected by order dated 01-12-2008. Thereafter, 16 the petitioner preferred W.P. No.7693/2008. In the said W.P., this Court by oral order dated 23-12-2008 rejected the petitioner's application for interim relief and subsequently came to be dismissed as in fructuous. Learned Counsel appearing on behalf of the respondent submitted that the petitioner has not challenged the order in the said Writ Petition before the higher Court and therefore, same is binding on him. Thereafter, the petitioner in Rent Appeal No. 3/2009 preferred similar application under Order 6 Rule 17 of the C.P.C. for amendment of W.S. on the same cause of action and also preferred another application Exh. 24 under Order 41 Rule 27 of the C.P.C. for producing additional evidence at the appellate stage. When on the same ground, and on the same cause of action,the petitioner's application was rejected upto High Court, the petitioner is not entitled to any relief in subsequent applications at appellate stage on the same cause of action and therefore, the present petition deserves to be rejected. 17 12. I have gone through the copy of plaint, W.S, evidence and applications at Exh. 23 and 24 alongwith impugned order passed by the appellate Court. It is crystal clear from the pleadings of the petitioner that initially he preferred application for amendment of W.S. under Order 6 Rule 17 of the C.P.C on 21-04-2006. Said application came to be dismissed by the competent authority on 01-12-2008 and thereafter, the petitioner preferred W.P. No. 7693/2008. In that W.P., interim relief was refused and thereafter, the said W.P. was rejected as infructuous. Said order was not carried out to the higher Court. In spite of these facts, the petitioner preferred present applications below Exh. 23 and 24 at the appellate stage. Though the appellate Court considered merits of proposed amendment, in any case, fact remains that similar application for amendment was dismissed previously upto High Court and therefore, the petitioner is not 18 entitled to any relief below Exh. 23 and 24. Though the petitioner cited some judgments on subject of subsequent events, limitation, and technical ground as stated hereinabove, it is not necessary to consider the same at this stage because the petitioner's previous application for amendment of W.S. was rejected up to High Court. In any case, the Apex Court in the matter of Vidyabai and others vs. Padmalatha and another reported in 2009(1) ALL MR 471 held that the Courts have no jurisdiction to allow the amendment if the trial is started. Head Note A of the judgment reads as under. "Head Note-A Civil Procedure- C.P.C.-Order 6 Rule 17, - Proviso (As inserted in 2002) - Application for amendment of written statement - Not allowed after commencement of trial - Issues framed and affidavit in view of examination in chief of witness filed - Would amount to commencement of proceeding - Court will have no jurisdiction at all to allow amendment." 19 13. This High Court in unreported judgment in Writ Petition NO. 1151/2009 by order dated 02-07-2009 (Coram: B.R. Gavai, J.) held that after commencement of trial, normally amendment should not be allowed. Para 6 of the said judgment reads as under. "6. After amendment to Civil Procedure Code, in 2002, Order VI Rule 17 position is very clear. As held by the Apex Court in case of Vidyabai, if an amendment seeks to bring on record, a matter after commencement of trial, it has to satisfy a condition that the said matter could not have been brought on record inspite of exercise due diligence. It has been held that aforesaid is a condition precedent for exercising the jurisdiction to allow the amendment after the commencement of trial. No doubt, courts have to be liberal in grant of amendment. However, after commencement of trial, unless aforesaid condition is satisfied, it is not open to entertain an application for amendment. In the present case, not only the issues are framed, but the evidence of the plaintiff is also over. Not only this but on 28-04-2006 itself 20 the petitioner/defendants had put the plaintiff on notice that property bearing no. 89 was not mentioned in the plaint, by making an averment in that respect in written statement. The plaintiffs/respondents did not take any steps for carrying out the amendment for a period of two years. Had the plaintiff exercised due diligence at least after noticing the written statement, they could have brought the matter on record which is now permitted to be brought on record after commencement of trial much prior to commencement of trial. As already held, by the Apex Court, the learned trial court had no jurisdiction to entertain such an application. Leave aside, there being an averment regarding what is due diligence exercised by the plaintiffs, there is no even a whisper regarding the same. The learned trial court has also not taken into consideration that aspect of the matter. The learned trial Court has grossly erred in allowing the application. Rule is therefore, made absolute in terms of prayer clause 'B'." 14. Previously also, similar view is taken by Apex Court in the matter of Rajendra Prasad vs. Swami Keshavji reported in 2007 AIR SCW 513. In 21 the present case, admittedly previously petitioner's application for amendment of W.S. was rejected and same was carried upto High Court. Considering these facts, I do not find any reason to interfere with the impugned order dated 01-08-2009 passed by the Principal District Judge, Aurangabad below Exh. 23 and 24 in Rent Appeal No. 3/2009. In any case, impugned order does not suffer from any illegality and / or contrary to any rules and regulations. Writ Petition is dismissed with no order as to costs. Rule discharged. [ K.K. TATED, J.] sut/AUG09/wp5710.09