ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5435 OF 2008 PETITION NO. 5435 OF 2008 PETITION NO. 5435 OF 2008 Abeda Iqbal Patel R/o. Room No.12, Ground Floor, Gool Mansion, 6, Homji Street, Fort, Mumbai - 400 001. ....Petitioner. (Orig.Defendant) Vs. Cormorant Investment Pvt.Ltd. A company incorporated under the Companies Act, 1956 having its registered office at C/o. Prime Investrade Limited, Gool Mansion, 2nd Floor, 6 Homji Street, Fort, Mumbai-400 001. ....Respondent. (Orig.Plaintiff) Ms.Yasmin E.Tavaria for the Petitioner. Mr.Haresh Mansukhani for the Respondent. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 10th DECEMBER, 2008. : 10th DECEMBER, 2008. : 10th DECEMBER, 2008. JUDGMENT: JUDGMENT: JUDGMENT: The Petitioner- Original Defendant has challenged the impugned order dated 7th July, 2008 passed by the Appellate Bench of Small Causes Court at Bombay, whereby, against an order in interim notice 2014/2007 dated 08/02/2008, passed by the learned Trial Judge, has allowed an amendment application to the plaint by holding that the Revision is tenable. ( 2 ) 2. The application for amendment to give better particulars of subsequent developments in consonance with the pleadings already made in the plaint was moved by the Respondent-Plaintiff. The same was rejected by holding that it is inconsistent and contrary to the averments already made in the plaint and it would cause prejudice and injustice to the other side. The pleadings are completed and the issues are framed. But, no affidavit in lieu of examination-in-chief filed, when the present application for amendment was moved. The Respondent’s- Plaintiff’s Revision Application against the said order was opposed by contending that the Revision under such interlocutory order is not tenable and also on the ground that it substantially affects the rights of the Plaintiff. 3. The relevant Section/portion of the Maharashtra Rent Control Act, 1999 (for short, "Maharashtra Rent Act") is as under:- Section Section Section 34 (4):- 34 (4):- 34 (4):- Where no appeal lies under this section from a decree or order in any suit or proceeding in Brihan Mumbai, the Bench of two Judges specified in clause (a) of sub-section (1) and elsewhere, the District Court, may, for the purpose of satisfying itself that the decree or order made was according to law, call for the ( 3 ) case in which such decree or order was made and the bench or Court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge, shall pass such order with respect thereto as it or he thinks fit." 4. Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "Bombay Rent Act") read thus:- Section Section Section 29 (3) 29 (3) 29 (3):- Where no appeal lies under this section from a decree or order in any suit or proceeding in Greater Bombay the bench to two Judge specified in clause (a) of sub-section (1) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and (the bench or Court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge, shall) pass such order with respect thereto as (it or he thinks fit.) 5. By the impugned order it is held that the Revision is tenable and thereby allowed the amendment application filed by the Respondent-Plaintiff. Therefore, the present Writ Petition by placing strong reliance mainly on the judgment of this Court in Writ Petition No.258 of Writ Petition No.258 of Writ Petition No.258 of 2007, 2007, 2007, dated 5th August, 2008. (M/s. J.M.Constructions dated 5th August, 2008. (M/s. J.M.Constructions dated 5th August, 2008. (M/s. J.M.Constructions Vs. Vs. Vs. Dr.Rustom P.Patel & Ors.) (S.B) Dr.Rustom P.Patel & Ors.) (S.B) Dr.Rustom P.Patel & Ors.) (S.B) and Sukhdev Prasad Sukhdev Prasad Sukhdev Prasad Raghubir Raghubir Raghubir Vs. Rambhujarat Kshamapati @ Rambhujarat Vs. Rambhujarat Kshamapati @ Rambhujarat Vs. Rambhujarat Kshamapati @ Rambhujarat ( 4 ) Chhampati, Chhampati, Chhampati, reported in 1982 (i) Bom. C.R. 832, (D.B.). reported in 1982 (i) Bom. C.R. 832, (D.B.). reported in 1982 (i) Bom. C.R. 832, (D.B.). In these two judgments (Supra) the orders of amendment to the pleadings were involved. Considering the facts and circumstances of the case in both these judgments, it is held that the Revision against the order of amendment being interlocutory and procedural in nature, not maintainable, but at the same stroke it is clearly observed in both these judgments that order which are substantially affecting the rights of the parties can be challenged in Revision. 6. There are other judgments of this Court whereby, it has been held that a revision against an interlocutory order when the substantial rights are involved, and when appeal is not maintainable or barred, is maintainable. Even prior to this in Sayarabi Sayyad Abdul Ajij Sayarabi Sayyad Abdul Ajij Sayarabi Sayyad Abdul Ajij (Deceased) (Deceased) (Deceased) through L.Rs. Vs. Shri Abdul Rashid Abdul through L.Rs. Vs. Shri Abdul Rashid Abdul through L.Rs. Vs. Shri Abdul Rashid Abdul Majid, Majid, Majid, 2004 (4) All M.R. 581 (S.B.), 2004 (4) All M.R. 581 (S.B.), 2004 (4) All M.R. 581 (S.B.), considering same provisions of Bombay Rent Act and the order allowing amendment, held that if such order affects substantial rights of parties, is not merely procedural order, the Revision against such order is maintainable. 7. The Supreme Court in Dondapati Narayan Reddy Vs. Dondapati Narayan Reddy Vs. Dondapati Narayan Reddy Vs. Duggireddy Duggireddy Duggireddy Venkatanarayana Reddy, (2001) 8 S.C.C. 115 Venkatanarayana Reddy, (2001) 8 S.C.C. 115 Venkatanarayana Reddy, (2001) 8 S.C.C. 115 ( 5 ) has observed:- . "The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time. Amendment may also be refused, if such a prayer made separately, is shown to be barred by time. Neither the trial court nor the High Court has found the existence of any of the circumstances justifying the rejection of the prayer for amendment of the written statement. Whether or not the amendment is allowed, the trial court is otherwise obliged to decide the validity of the disputed will which is the basis of the suit filed by the plaintiff. We are of the opinion that the courts below." 8. In Rajesh Kumar Aggarwal Vs. K.K.Modi, (2006) 4 Rajesh Kumar Aggarwal Vs. K.K.Modi, (2006) 4 Rajesh Kumar Aggarwal Vs. K.K.Modi, (2006) 4 S.C.C. S.C.C. S.C.C. 385, 385, 385, the Supreme Court has observed as under:- "15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. ( 6 ) 17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 20. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. There is a plethora of precedents pertaining to the grant of refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice." 9. In Baldev Singh Vs. Manohar Singh, (2006) 6 S.C.C. Baldev Singh Vs. Manohar Singh, (2006) 6 S.C.C. Baldev Singh Vs. Manohar Singh, (2006) 6 S.C.C. 198 198 198, the Apex Court has observed:- . "Court should be extremely liberal for granting the prayers for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side". 10. In Usha Balasaheb Swami Vs. Kiran Appaso Swami, Usha Balasaheb Swami Vs. Kiran Appaso Swami, Usha Balasaheb Swami Vs. Kiran Appaso Swami, (2007) (2007) (2007) 5 S.C.C. 602, 5 S.C.C. 602, 5 S.C.C. 602, the Apex Court has further elaborated the General principle revolving around Order 6 Rule 17 and Order 12 Rule 6 of C.P.C.with regard to ( 7 ) the plaint and written statement and the difference in principle applicable to them. The relevant observations are as under:- "19. It is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement." 11. In Andhra Bank Vs. ABN Amro Bank N.V. and Ors. Andhra Bank Vs. ABN Amro Bank N.V. and Ors. Andhra Bank Vs. ABN Amro Bank N.V. and Ors. (2007) (2007) (2007) 6 SCC 167, 6 SCC 167, 6 SCC 167, the Apex Court has observed that the additional ground of defence in amendment of written statement is permissible and it is accordingly granted. ( 8 ) 12. Recently, in Gautam Sarup Vs. Leela Jetly & Ors. Gautam Sarup Vs. Leela Jetly & Ors. Gautam Sarup Vs. Leela Jetly & Ors. (2008) (2008) (2008) 7 S.C.C., 85 7 S.C.C., 85 7 S.C.C., 85 while considering Order 6 Rule 17, Order 8 Rule 5, Order 12 Rule 6 of C.P.C. and Section 58 of the Evidence Act, dealing with the aspect of written statement, the Supreme Court has observed that - . "The court is required to apply its mind on several factors including viz. whether by reason of such amendment the claimant intends to resile from an express admission made by him. In such an events the application for amendment may not be allowed." (Union of India Vs. (Union of India Vs. (Union of India Vs. Pramod Pramod Pramod Gupta, (2005) 12 SCC 1). Gupta, (2005) 12 SCC 1). Gupta, (2005) 12 SCC 1). It is concluded by observing as under:- "28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other." 29. An explanation can be offered provided there is any scope therefor. A clarification may be made where the same is needed. 30. We will assume that despite the amendments made by the Code of Civil Procedure (Amendment) Act, 1976, amendment of pleadings being procedural in nature, the same should be liberally granted but as in all other cases while exercising discretion by a court of law, the same shall be done judiciously." ( 9 ) 13. In North Eastern Railway Administration, Gorakhpur North Eastern Railway Administration, Gorakhpur North Eastern Railway Administration, Gorakhpur vs. vs. vs. Bhagwan Das (Dead) by LRs., (2008) 8 SCC 511, Bhagwan Das (Dead) by LRs., (2008) 8 SCC 511, Bhagwan Das (Dead) by LRs., (2008) 8 SCC 511, the Apex Court has reiterated in para 16 as under: "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v.Kalgonda Shidgonda Patil (AIR 1957 SC 363), which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166." 14. The Court need to consider various facets of CPC including Order 6 Rule 17, Order 12 Rule 6, Order 1 Rule 10 readwith Section 151 of the C.P.C., the stage of the trial, due diligence/reason and the Judicial exercise of discretion and facts and circumstances of the case. (Ajendraprasadji (Ajendraprasadji (Ajendraprasadji N.Pandey & Anr. Vs. Swami N.Pandey & Anr. Vs. Swami N.Pandey & Anr. Vs. Swami Keshavprakeshdasji Keshavprakeshdasji Keshavprakeshdasji N. and Ors.(2006) 12 S.C.C. 1.) N. and Ors.(2006) 12 S.C.C. 1.) N. and Ors.(2006) 12 S.C.C. 1.) 15. In Shanti Vs. Homes Ins. Co. A 1974 S.C. page Shanti Vs. Homes Ins. Co. A 1974 S.C. page Shanti Vs. Homes Ins. Co. A 1974 S.C. page ( 10 ) 1719 1719 1719, the Apex Court has observed that "the amendment order is not purely of discretion. Even with regard to discretionary orders the Appellate Court can interfere where the order is insupportable in law or is unjust. 16. In Chander Kanta Bansal Vs. Rajinder Singh Anand, Chander Kanta Bansal Vs. Rajinder Singh Anand, Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) (2008) (2008) 5 S.C.C. 117 5 S.C.C. 117 5 S.C.C. 117, the Supreme Court has observed that:- "15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spirt of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. 18. As rightly referred to by the High Court in Union of India Vs. Pramod Gupta (2005) 12 SCC 1, this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings." 17. What is boiled out from all this is that to grant or reject an amendment of plaint and or written statement is important facet of proper adjudication of the dispute between the parties. Therefore, the Court needs to consider various aspects as referred above ( 11 ) while granting and/ or refusing the amendment application. Therefore, in a given case if Court in spite of all this reject such application, the Appellate Court and or the Revisional Court, needs to consider right or wrong exercise of discretion by the Court below. Any party, therefore, if aggrieved by such order is entitled to challenge the same, being an order against which appeal is not available, under the Act and therefore, only remedy is the Revision. Therefore, even if it is procedural order, still if the court satisfied that it "was not made according to law" as contemplated under Section 34 (4) of the Maharashtra Rent Act and even Section 29(4) of the Bombay Rent Act, the interference is a must. It can be done only when the revisional court re-considers the same and pass order accordingly. 18. The Sections in question are wider than the General Revisional Procedure of CPC. The requirement is; if any appeal is not available and, if order is not in accordance with law and, it affects the substantial rights of the parties, I see there is no reason that, against such order, the remedy is available to the aggrieved parties is to file Revision. There is no bar created, under the Maharashtra Rent Act. ( 12 ) 19. It is pertinent to reproduce the observations of the Supreme Court in Gurdev Kaur & ors. v. Kaki & Gurdev Kaur & ors. v. Kaki & Gurdev Kaur & ors. v. Kaki & ors., ors., ors., (2007) 1 SCC 546 : (2007) 1 SCC 546 : (2007) 1 SCC 546 : "2. Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual’s whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos." 20. In a given case, any such order which is contrary to the well settled principle of law and or not in accordance with law, would definitely affect the substantial rights of the parties. Therefore, if any party preferred a Revision application and placed on record the Apex Court decisions and High Court decisions with this regard, granting or not granting amendment, the Revisional court needs to exercise its jurisdiction in accordance with law. That can be done only after hearing both the parties in Revision. Even though, it is against the so called interlocutory or procedural order. In my view, the Revisional court has no choice but to entertain such Revision and passed appropriate order, considering the facts and circumstances of the case and prevailing law on the subject. 21. Another important facet observed by the Apex Court ( 13 ) (G.L.Vijain (G.L.Vijain (G.L.Vijain Vs. K.Shankar (2006) 13 S.C.C. 136) Vs. K.Shankar (2006) 13 S.C.C. 136) Vs. K.Shankar (2006) 13 S.C.C. 136) in following paragraphs is also substantially affects the reasoning given in Sukhadev Sukhadev Sukhadev and J.M.Constructions J.M.Constructions J.M.Constructions (Supra) (Supra) (Supra):- "15. There is furthermore no dispute that the High Court can exercise its inherent jurisdiction in appropriate cases. The revisional jurisdiction, however, in effect and substance is an appellate jurisdiction. 16. In Narinder Mohan Arya Vs. United India Narinder Mohan Arya Vs. United India Narinder Mohan Arya Vs. United India Insurance Insurance Insurance Co. Ltd. (2006) 4 SCC 713, Co. Ltd. (2006) 4 SCC 713, Co. Ltd. (2006) 4 SCC 713, this Court observed : (SCC P. 730, para 47) . "47. A revisional jurisdiction as is well known involves exercise of appellate jurisdiction. (See Shankar Ramchandra Shankar Ramchandra Shankar Ramchandra Abhyankar Abhyankar Abhyankar V. Krishnaji Dattatreya Bapat, V. Krishnaji Dattatreya Bapat, V. Krishnaji Dattatreya Bapat, (1969) (1969) (1969) 2 SCC 74 2 SCC 74 2 SCC 74 and Nalakath Sainuddin V. Nalakath Sainuddin V. Nalakath Sainuddin V. Koorikadan Koorikadan Koorikadan Sulaiman, (2002) 6 SCC 1. Sulaiman, (2002) 6 SCC 1. Sulaiman, (2002) 6 SCC 1. 22. Therefore, the revisional Court, need to exercise its jurisdiction if the conditions precedent laid down in Section 34(4) of the Maharashtra Rent Act are fulfilled. The limitation of power as contained in Section 115 of CPC is, therefore, not applicable. (G.L.Vijain (G.L.Vijain (G.L.Vijain Vs. K.Shankar, (2006) 13 Supreme Court Vs. K.Shankar, (2006) 13 Supreme Court Vs. K.Shankar, (2006) 13 Supreme Court Cases Cases Cases 136). 136). 136). 23. The present Petition is under Article 227 of the Constitution of India filed by the petitioner against the impugned order whereby the Plaintiffs amendment ( 14 ) application has been granted by considering the various aspect on merit, as well as, on law and permitted to amend the said plaint by observing in para 17 as under:- "17. The learned Advocate for the Applicant further referred to the judgment of Supreme Court 1996(2) Supreme Court 1996(2) Supreme Court 1996(2) Supreme Court cases cases cases page 25 page 25 page 25 in the matter of G.Nagamma G.Nagamma G.Nagamma and another V/s. Siromanamma and another V/s. Siromanamma and another V/s. Siromanamma and and and another, another, another, wherein their Lordship observed that, even by amending plaint, party can seek relief alternatively also. We find ratio of those authorities are clearly speaking about the legal position. It is a fact that, in the Trial Court Applicant has sought amendment just to provide better particulars that too with pleadings and it is required for deciding the suit which is necessary to be added. It is not causing any prejudice to the other side, but the learned Trial Judge alleged misread the legal position and misdirected in appreciating the factual aspect. In fact Applicant is not raising any alternative or inconsistent plea. There is no any change of ground. A simple contentions is being added that too consistent with the original pleadings about the bonafide requirement, showing the appointment of staff members and suit premises required for that purpose. We find the findings arrived by the Trial Court is not according to law. Hence, order of Trial Court is require to be set aside by allowing Revision Application. Hence, order. . The impugned order is within the framework of law and the record. However, all defence pleas/points are kept open. ( 15 ) 24. Resultantly, I am of the view that:- a) The Section 34 of the Maharashtra Rent Act gives/ provides wider power to the Revisional Court than Section 115 of C.P.C.. b) Any order, if it is not in accordance with law, and contrary to law or settled principle of law or perverse, but not appealable, a Revision is maintainable. c) The phrase "in accordance with law" has various facets. It is in use in every field of law. It covers various doctrines including the Doctrine of Binding Precedent, the Doctrine of Natural Justice and the practice and procedure of law specially when it affects the substantial rights of the parties. Therefore, any judgment or order need to be in accordance with law, whether interlocutory or final, if not then there is no bar, the Revision is maintainable, even against such order. ( 16 ) 25. In my view, considering the various Supreme Court Judgments and even the Judgments of this Court as referred above, Sayarabi (Supra) Sayarabi (Supra) Sayarabi (Supra) and Pacific Engineering Pacific Engineering Pacific Engineering Co. Co. Co. Pvt. Ltd. Vs. East India Hotels Ltd., 2005(1) Pvt. Ltd. Vs. East India Hotels Ltd., 2005(1) Pvt. Ltd. Vs. East India Hotels Ltd., 2005(1) Bom.C.R.427, Bom.C.R.427, Bom.C.R.427, such