-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8137 OF 2007 WRIT PETITION NO. 8137 OF 2007 WRIT PETITION NO. 8137 OF 2007 Rajesh Mansukhlal Khadawala .. Petitioner. V/s. Naina Kanji Nisar @ Dr. Naina N. Wade & Anr. .. Respondents. --- WITH WITH WITH WRIT PETITION NO. 8146 OF 2007 WRIT PETITION NO. 8146 OF 2007 WRIT PETITION NO. 8146 OF 2007 Rajesh Mansukhlal Khadawala .. Petitioner. V/s. Naina Kanji Nisar @ Dr. Naina N. Wade & Anr. .. Respondents. --- Mr.Deval Mehta i/by Divya Shah Associates for the Petitioner. Ms. Sapna Rachure with T.N.Tripathi for the Respondent Nos. 1 & 2. --- CORAM : A.A. SAYED, J. CORAM : A.A. SAYED, J. CORAM : A.A. SAYED, J. DATED : 21ST FEBRUARY, 2008. DATED : 21ST FEBRUARY, 2008. DATED : 21ST FEBRUARY, 2008. P.C. : P.C. : P.C. :- . Heard. Rule; rule made returnable forthwith and heard finally by consent of the parties. 2. By both these petitions, the petitioner challenges the order dated 19/20th June, 2007 passed by the learned Judge of the Small Causes Court at Bombay, whereby the interim notices for amendment to the plaints -: 2 :- came to be discharged. By the amendment, the petitioner sought to add pleadings relating to Gala No.23 to the plaints and for declaration of tenancy in respect of the said Gala No.23 also. There is no explanation, however, as to why amendments relating to the same Gala No.23 are sought in both the plaints. Be that as it may, a common order is being passed in both the above petitions. 3. The two suits have been filed by the petitioner to declare him as tenant of Gala Nos.10 and 24 respectively. The case of the petitioner in the plaints is that his late father was carrying on business in the suit premises in the name and style of M/s. Bobby Fast Food and Ice Cream Centre on the ground floor of the suit building and his late mother had handed over possession of the Gala Nos.10 and 24 to him to run Hotel business, which he is presently doing under the name and style of Om Sai Sagar. According to the petitioner, Conducting Agreements were entered into by the Respondents’ father with the late parents of the Respondents. However, though the Agreements were termed as Conducting Agreements, the intention was to create tenancy in respect of the said Gala Nos.10 and 24. 4. It is the case of the petitioner in the Interim Notices that the respondents’ late parents had allowed -: 3 :- the petitioner’s father to use Gala No.23 also alongwith Gala Nos.10 and 24, for storage purpose as store room. According to the petitioner at the relevant time when the suits were filed in respect of gala Nos. 10 and 24, there was no apprehension of dispossession of Gala No.23. However, on 30th April, 2004 the respondents attempted to disturb his peaceful possession of Gala No.23 by attempting to break open the lock and accordingly a complaint was lodged against the respondents. The learned counsel for the petitioner submits that since this happened subsequent to the filing of the declaratory suits, by way of the amendment Gala No. 23 is now sought to be incorporated in the plaints. 5. The case of the respondents’, on the other hand, is that the petitioner was never allowed to conduct hotel business in Gala No.23 and that it is an independent shop and that the petitioner had broken open the lock of the Gala No.23 and trespassed in the said Gala No.23. The learned counsel for the respondents further pointed out that the respondents have filed a suit in this Court being Suit No. 977 of 2007 for possession of the Gala No.23 some time on 3rd April, 2007 on the ground of trespass by the petitioner and it is denied that the petitioner has any tenancy rights in -: 4 :- respect of the said Gala No.23 as claimed by the petitioner. 6. Undisputedly, R.A.D. suits were filed to declare the petitioner as tenant in respect of Gala No.10 and Gala No.24 only. The only reason given for not including Gala No.23 in the earlier suit/s is that at the relevant time, there was no apprehension of dispossession in respect of the said Gala No.23 and that the apprehension arose some time on 30th April, 2004. 7. Admittedly, Gala No.23 is a separate and independent premises. It is further undisputed that in respect of Gala No.23, a suit for eviction has been filed by the respondents against the petitioner in this Court being Suit No.977 of 2007 on 13.04.2007, wherein an order of status-quo came to be passed. It is pertinent to note that the apprehension expressed by the petitioner about his forcible dispossession in respect of the Gala No.23, is some time after the Suit No.977 of 2007 was filed, wherein, it must have been obviously admitted by the respondents that the petitioner is in possession of Gala No.23 for which eviction is sought. It is noted that the R.A.D. suits were filed on 2nd April, 2004, whereas the Interim Notices for amendment were filed on 24th March, 2006. There is also no -: 5 :- satisfactory explanation why the petitioner waited till 2006 when he had lodged complaint apprehending forcible dispossession from Gala No.23 on 30th April, 2004. It is not in dispute that so far as Gala No.10 and 24 are concerned, the rights as claimed by the petitioner arose after the conducting agreements were executed and there is no conducting agreement in respect of Gala No.23. 8. I have perused the material on record and the impugned orders. In the impugned orders it is observed by the learned Judge that the cause of action is totally different and that the matter is subjudice and if the amendment is allowed the entire nature of the suit will change as the cause of action is different and the premises are different. The learned Judge further observed that the amendment sought is only an after thought. I am in agreement with the findings of the learned Trial Judge. Significantly, even for Gala No.10 and Gala No.24, two separate suits are filed by the petitioner. I see no reason why a separate suit could not be filed in respect of Gala No.23, particularly when admittedly Gala No.23 is a separate and independent premises. It appears that this is sought to be done because there is no Conducting Agreements in respect of Gala No.23, as is in the case of Gala No.10 and 24. The amendment sought does not appear to be bonafide. The -: 6 :- petitioner is, however, at liberty to file a separate suit, if he so desires. 9. In my view the reasons given for rejecting the amendment in the impugned orders cannot be faulted. There is no illegality or infirmity in the impugned orders so as to exercise writ jurisdiction of this court to set aside the impugned orders under Article 227 of the Constitution of India. 10. Consequently, both the writ petitions are dismissed and rule is discharged. 11. It is made clear that the observations in this order are prima facie and this order shall not influence the decision of the suits on merits. (A.A.SAYED, J.) .....