1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5773 OF 2001 Hemchand Mahavirprasasd Singhania ...Petitioner vs. Kanubhai Mangaldas Shah ...Respondent WITH WRIT PETITION NO.2741 OF 2004 Kanubhai Mangaldas Shah ...Petitioner vs. Hemchand Mahavirprasad Singhania M/s.Laxmi Aluminium Pvt.Ltd. ...Respondents Mr.A.G.Damle for the petitioner in W.P. No.5773 of 2001 and for respondent no.1 in writ petition no.2741 of 2004 Mr.B.K.Raje for the respondent in W.P.No.5773 of 2001 and for petitioner in W.P.No.2741 of 2004 CORAM :A.S.OKA,J. DATE : MARCH 30, 2010 JUDGMENT : 1 These two petitions arise out of a same suit and therefore, the same have been tagged together. With a view to appreciate the submissions made by the learned counsel for the parties, a brief reference to the facts of the case will be necessary. 2 Writ Petition no.5773 of 2001 has been filed by the original plaintiff and writ Petition no.2741 of 2004 has been filed by the original first defendant. 3 The plaintiff filed a suit for possession of the suit premises being a shed more particularly described in 2 paragraph 2 of the plaint. It is stated that the first defendant is a monthly tenant in respect of the suit premises. The possession is sought interalia on the ground that the first defendant has committed breaches of the terms and conditions of the tenancy and has violated the provisions of section 108 (o) of the Transfer of Property Act,1882. In the plaint it is stated that a notice has been issued by the Municipal Corporation alleging that the first defendant has made illegal additions, alterations and extensions to the suit premises. It is alleged that the first defendant is not ready and willing to pay to the plaintiff permitted increases as set out in the plaint. The allegation is that the first defendant is in arrears of rent. Therefore, a decree of eviction is prayed for. 4 It must be stated here that the first defendant has filed an application for fixation of standard rent. The said application has been decided during the pendency of the writ petitions and the order passed on standard rent application is subject matter of challenge in another proceeding. Interim notice was taken out by the plaintiff seeking a direction against the first defendant for deposit of arrears of rent and the permitted increases. The said notice was disposed of by the learned trial Judge by directing the first defendant to deposit contractual rent at the rate of Rs.200/- per month from October 1996 onwards till the disposal of the suit. A revision application was preferred by the plaintiff for challenging the said order. The revision application has been rejected. Writ petition no.5773 of 2001 has been preferred by the plaintiff for challenging the said orders. As the application for fixation of standard rent has been finally decided, as far as payment of rent and permitted increase is concerned, the parties will be 3 governed by order passed on the standard rent application and on the proceedings which are filed for challenging the final order on the standard rent application. In the circumstances, the said writ petition need not be entertained as rights of the parties as regards deposit of the rent and permitted increase will be governed by orders passed in the proceedings of the standard rent application. 5 A notice for amendment of the plaint was taken out. Notice was taken out initially for incorporating the relief of money decree of arrears of rent and permitted increases and of mesne profits from 1 st October 1999 till the delivery of the vacant possession of the suit premises. A prayer was sought to be incorporated for issuing a direction for holding an enquiry under Rule 12 of Order XX of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). Certain averments were sought to be incorporated along with aforesaid additional reliefs. The allegation is made that the first defendant was in arrears of rent and permitted increases from 1 st October 1996 to 31 st December 2003. An averment was sought to be added that from 1 st October 1999 onwards the first defendant was under an obligation to pay mesne profits. Another amendment was sought for amending valuation clause of the suit for the purpose of making payment of deficit court fee on the prayers which are sought to be added. The said notice was made absolute on 11 th February 2004. Writ Petition no.2741 of 2004 is filed by the first defendant for challenging the said order. 6 The learned counsel for the first defendant in support of the said petition submitted that the suit has been filed by the petitioner which is registered as R.A.E 4 suit and it is not registered as suit for recovery of rent. He submitted that a prayer for recovery of arrears of rent and mesne profit cannot be incorporated in the suit which is registered as R.A.E.Suit. The second submission is that the proposed amendment is clearly barred by limitation. He placed reliance on the decision of this Court in case of Hari Shankar Singhania and others vs. Dr.Gaur Hari Singhania and others [2002 (4) Mh.L.J. 938). He submitted that in any event, when application for standard rent is pending, the plaintiff could not have sought relief of decree of arrears of rent. There is no explanation as to why application was belatedly moved after the commencement of trial of the suit. He submitted that the delay proves that the plaintiff has waived his right to claim arrears. 7 I have carefully considered the submissions. What is sought to be claimed is not only arrears of rent from 1 st October 1996 to 30 th September 1999 but mesne profit from 1 st October 1999. Apart from claiming aforesaid amounts, a prayer is made for issuing a direction for holding an enquiry for determination of mesne profit in accordance with Rule 12 of Order XX of the said Code. In the proposed amendment, in paragraph 4A, an averment sought to be incorporated is that the first defendant was in arrears of rent up to 31 st December 2003. The suit has been filed in the year 1999. Therefore, the entire amendment cannot be said to be clearly barred by law of limitation. Even if the amendment is permitted, issue of bar of limitation is always open as the said amendment does not relate to back date of institution of the suit. This is not a case where the entire amendment can be said to be clearly barred by limitation. Even assuming that a part of the amendment is barred by limitation, detailed scrutiny will be required for separating the time barred 5 claim. Nomenclature of the suit may be R.A.E. Suit, but there is no law which prevents the plaintiff in the suit filed under the Bombay Rents, Hotel and Lodging House Rates (Control) Act,1947 (hereinafter referred to as the said Act) for recovery of possession from incorporating the claim for passing a decree for arrears of rent and mesne profits. As far as plea of waiver is concerned, the same can be always raised in the written statement dealing with amendment in as much as the waiver is matter of evidence. The suit is not governed by the amended rule 17 of Order VI of the said Code as the same has been filed prior to 1 st July 2002. Therefore, it was not necessary for the plaintiff to record reasons as to why application for amendment was moved after commencement of hearing of the suit. Even if amendment is permitted, all contentions of the first defendant including maintainability of the prayers which are added and the bar of limitation will always remain open. There is no reason to interfere in exercise of the power of superintendence under Constitution of India with the order permitting the amendment. 8 Hence, I pass the following order : i) Writ Petition no.5773 of 2001 does not survive in view of order passed on application for fixation of standard rent application. The parties shall be governed by the order passed in proceeding for fixation of standard rent. Hence, rule is discharged. ii)Writ Petition no.2741 of 2004 is rejected. Rule is discharged with no order as to costs. iii)It is clarified that all contentions of the first defendant including the contention as regards the maintainability of the prayer for passing decree of 6 arrears of rent and mesne profits are kept open. The issue of limitation is expressly kept open. The said contentions can be raised by the first defendant by filing an additional written statement. If additional written statement is not filed till today, the trial Court will permit the same to be filed within a period of four weeks from the date on which writ of this order is received by the trial Court. iv)Hearing of the suit is expedited. JUDGE