1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3895 OF 2009 Dr.Mrs.Dattaben C. Shah .. Petitioner versus Babubhai Jesanglal Shah & Ors. .. Respondents Mr.Ketan R. Parekh with Mr.Kunjal Sanghavi i/by K.R.Parekh & Co for the petitioner. Mr.V.P.Sawant for respondent Nos.1 to 3. CORAM : A.S.OKA, J. DATE : 17th September 2009. P.C.: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. By this writ petition under Article 227 of the Constitution of India, the petitioner who is the original plaintiff has taken an exception to the order passed by the trial Court by which the application for amendment of plaint has been rejected by the trial Court. 2. The petitioner filed a suit against the 1st respondent in the Court of Small Causes for possession of the suit premises. The case of the petitioner is that the 1st respondent is a tenant in respect of the suit premises more particularly described in paragraph 2 of the plaint which is a flat. The allegation in the suit is that the 1st respondent is not using the suit premises for a period of more than six months prior to the date of institution of the suit. 2 Further allegation is that the 1st respondent has acquired another accommodation. An allegation has been made in the plaint that the suit premises are required by the petitioner for bonafide use. A specific allegation was made in the plaint that in February 2006 the 1st respondent has inducted third parties in the suit premises. The 1st respondent filed a written statement for contesting the suit. 3. An application for amendment of the plaint was moved by the petitioner in January 2007. It is stated in the application for amendment that the 1st respondent has allowed the 2nd respondent herein who is his son-in- law and the 3rd respondent herein who is his daughter to use and occupy the suit premises. The allegation is that the 1st respondent has sublet the suit premises to the 2nd and 3rd respondents. Therefore, a prayer was made for impleading the 2nd and 3rd respondents as party defendants and for adding relevant averments. In text of amendment, the petitioner came out with a case that in the plaint the petitioner had already alleged that the 1st respondent had sublet the suit premises. It is pointed out that the names of the sub-tenants became available when the reply was filed by the 1st respondent to the injunction notice. By the amendment, reliance was sought to be placed on several documents. The application for amendment was opposed by the 1st respondent by filing reply by contending that assuming that he had permitted the 2nd and 3rd respondent to occupy the suit premises, the same does not amount to subletting. 3 4. The learned trial Judge while rejecting the application relied upon proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 by observing that the application for amendment has been filed after the trial has commenced. 5. The submission of the learned counsel appearing for the petitioner is that the learned trial Judge has completely ignored the averments made in the application for amendment. He submitted that in view of the explanation contained in application for amendment, the proviso to Rule 17 of Order VI of the said Code could not have come in the way of the petitioner. The learned counsel appearing for the respondents opposed the petition by contending that the issues were settled on 14th June 2006 and application for amendment was made long thereafter. He submitted that apart from the fact that no case of subletting is disclosed, there is no explanation for delay in as much as the petitioner could have applied for the same earlier. He, therefore, submitted that no interference was called for. 6. I have carefully considered the submissions. It is true that the application for amendment was moved in January 2007 after the issues were settled. It must be noted here that in the plaint as originally filed, the petitioner has alleged that the 1st respondent had sublet the suit premises to the third parties. In the application for amendment it is disclosed that in the reply filed by the 1st respondent on 22nd March 2006, he came out with a case that he has been residing in the suit premises alongwith his daughter. 4 Perusal of the application for amendment shows that the petitioner has collected several documents such as the letter of address to gas agencies, information slip issued by MTNL, ration card, printed booklet published by Patna Jain Mandal Parivar Parichay 1997. In this case, there is a foundation for the plea of sub-tenancy in the original plaint. The averments made in the application for amendment show that the particulars such as names of the alleged sub-tenants became available only after the reply was filed by the 1st respondent to application for temporary injunction. Thereafter, the petitioner collected several documents which are referred to and relied upon in the text of the amendment. The recording of evidence has not yet commenced. In the circumstances, there was sufficient explanation for not filing the application for amendment earlier. Even with exercise of due diligance, the amendment could not have been made earlier. In my view, looking to the nature of the averments in the application for amendment and the text of the proposed amendment the trial Court ought to have allowed the amendment. Whether the 1st respondent has sublet suit premises to 2nd and 3rd respondents is a question which will have to be decided on the basis of evidence. It will be open for the 1st respondent to file additional written statement. 8. Hence, the petition must succeed and I pass the following order: : O R D E R : (a) The impugned order dated 27th January 2009 is quashed and set aside and the application at Exhibit 13 in R.A.E.Suit No.67/139 of 5 2006 is allowed. (b) Amendment shall be carried out by the petitioner within a period of two weeks from the date on which writ of this order is received by the trial Court. (c) All contentions of the parties on merits of the suit are kept open. (d) Writ petition is allowed in above terms. (A.S.OKA,J)