1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.731 OF 1998 Smt.Lachmi L. Vazirani (since deceased through L.R.) 1a Mrs.Meera D.Mukhopadhyay ...Petitioner vs. Sarokh Rustom Delkhah ...Respondent Mr.S.S.Redij i/b M/s.Khilani & Company for the petitioner Mr.H.K.Vazirani with Ms Pushpa H.Goswanmi for the respondent CORAM :A.S.OKA,J. DATE : FEBRUARY 17, 2010 JUDGMENT : 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. The Writ petition is filed by the original plaintiff challenging the order passed by the Court of Small Causes by which the application for amendment of the plaint made by the petitioner has been rejected. 2 The petitioner filed a suit for eviction in March 1986 under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act,1947 (hereinafter referred to as the said Act). Before filing the suit, the petitioner issued a notice dated 19th July 1985 to the respondent-defendant calling upon the respondent to vacate and to pay arrears of rent. According to the petitioner monthly rent is Rs.190/-. In the suit, the possession is not claimed on the ground of arrears of rent under section 12 of the said Act. An application for amendment of the plaint was filed on 29th September 1997. By the amendment the petitioner sought permission 2 to rely upon the notice dated 19th July 1985 demanding arrears of rent from February 1982 onwards. In the text of the amendment it is further stated that within one month from the date of receipt of the notice, an application for fixing standard rent was filed by the respondent in which interim standard rent at the rate of Rs.190/- per month has been fixed. It is alleged that since July 1990, the respondent is in arrears of rent. Therefore, prayer for possession was sought to be incorporated. A Prayer for money decree of arrears of rent from 1st July 1990 till 30th September 1997 along with a direction for paying mesne profit at the rate of Rs.1000/- per month. By the impugned order, the said application has been rejected. 3 The learned counsel for the petitioner submitted that the application for amendment could not have been rejected on the ground of bar of limitation. He submitted that the amendment ought to have been allowed by keeping the issue of limitation open. He submitted that without entering into merits of the text of the amendment, the same ought to have been allowed. The learned counsel for the respondent supported the impugned Judgment and Order. Even the standard rent application has been finally decided. He pointed out that in terms of the order passed on the standard rent application, the rent at the rate of Rs.190/- has been deposited by the respondent till the date on which standard rent application was disposed of. He placed reliance on the order dated 19th August 2003 in Writ Petition no.4276 of 2003 passed by this Court by which this Court confirmed the order passed by the trial Court by which the time to deposit the arrears was extended. He submitted that no interference is called for. 3 4 I have given careful consideration to the submissions. It is not in dispute that within a period of one month from the date of service of notice of demand, the respondent filed an application for fixation of standard rent in which interim rent was fixed. The text of the amendment itself suggests that till June 1990, interim standard rent at the rate of Rs.190/- per month was deposited by the respondent. It is, therefore, obvious that section 12(3)(a) of the said Act will have no application. In fact, in the plaint as originally filed, a decree has not been claimed on the ground of arrears of rent. Under clause (b) of sub section 3 of section 12 of the said Act, the defendant-tenant is entitled to relief under forfeiture if he deposits with the trial Court entire arrears on first date of hearing of the suit along with costs of the suit and keeps on depositing the rent. 5 Factually, in the present case, a decree was not claimed on the ground of arrears of rent till the 1st date of hearing, and 12 years after filing of the suit the ground of arrears of rent is sought to be added by the amendment. As stated earlier, the petitioner could have claimed eviction only on the basis of clause (b) of section 12 (3) of the said Act. If the amendment is allowed belatedly, the tenant will be deprived of an opportunity to claim relief of forfeiture which is the statutory right conferred upon him under the said Act. Therefore, apart from the fact that amendment was belatedly moved, the amendment will cause prejudice to the respondent as he will be prevented from claiming relief against forfeiture provided under section 12(3) (b). 6 As far as prayer for incorporating a prayer for 4 decree of arrears of rent is concerned, now the amount respectively entire arrears of rent for the period for which decree is claimed has been already deposited. As far as mesne profit is concerned, if at all decree is passed for eviction, the trial Court can always issue necessary direction for holding an enquiry for determination of mesne profit. Therefore, the trial Court was right in rejecting the prayer for permitting the petitioner to carry out amendment to the plaint. 7 Subject to what is observed above, no case for interference is made out. Writ Petition is rejected. Rule is discharged. No order as to costs. JUDGE