1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3104 OF 2009 Nimmi V. Vazirani .. Petitioner Versus Rajendra Prabhudas Kalap & Ors. .. Respondents Mr.V.A.Thorat, Sr.Advocate i/by M/s.Hariani & Co for the petitioner. Mr.Bharat Joshi for respondent Nos.1 and 2. CORAM : A.S.OKA, J. DATE : 12th August 2009. ORAL JUDGMENT: . I have heard the submissions of the learned counsel appearing for the parties. By this writ petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the orders dated 21st March 2008 and 16th September 2008 passed respectively by the learned Judge of the Court of Small Causes and the Appeal Bench. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case. The petitioner herein filed a declaratory 2 suit in the Court of Small Causes against the 1st and 2nd respondent herein. A declaration was claimed in the said suit by the petitioner that she is the direct tenant of the defendant no.3 in the said suit (Provident Investment Company Ltd). The 1st and 2nd respondents filed a suit for eviction against a tenant named as “Vishindas D. Vazarani”. In the said suit the 1st and 2nd respondents-plaintiffs had taken out a notice for interim injunction. A reply was filed to the said notice by the defendant (Vishindas D.Vazarani) contending that he was never in possession or use or occupation of the suit premises and he does not have any right, title and interest in respect of the suit premises or any portion thereof. In short, the contention raised was that the said Vishindas was not concerned with the suit premises. 3. In view of the contentions raised by said Vishindas, the learned Judge of the Court of Small Causes framed a preliminary issue of maintainability of the suit in exercise of powers under section 9A of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The said issue was framed as the said Vishindas raised contention that he is not concerned with the suit premises in any manner and therefore there was no relation of landlord and tenant between the said 1st and 2nd respondents and the said Vishindas. For the purposes of hearing of the preliminary issues which were framed on 21st July 2004, on 13th August 2004 the 3 1st respondent filed an affidavit in lieu of evidence. On 19th October 2004 an application was moved by 1st and 2nd respondents for amendment of the plaint for deleting the name of the said Vishindas and for substituting the same by the name of present petitioner (Nimmi V. Vazirani). It must be stated here that on 04th September 2009 cross-examination of the 1st respondent was also recorded. On 28th January 2005 the learned trial Judge passed an order directing that the said application for amendment made by the 1st and 2nd respondents shall be kept pending till the disposal of notice for injunction alongwith which issue of jurisdiction was to be decided. On 21st March 2005 two separate orders were passed by the learned trial Judge. By the first order, the learned Judge held that the Small Causes Court had jurisdiction to entertain and try the suit and by the second order, the application for amendment made by the 1st and 2nd respondents was allowed. Both the said orders were challenged by the petitioner as well as by the 3rd respondent herein (Vishindas D. Vazarani) by filing separate revision applications. The said revision applications have been dismissed by judgment and order dated 16th September 2008. The orders of the trial Court as well as the Appeal Bench of the Small Causes Court referred to above are subject matter of challenge in this writ petition under Article 227 of the Constitution of India. 4. The learned senior counsel appearing for the petitioner 4 submitted that the suit as filed by the 1st and 2nd respondents in the Court of Small Causes was not maintainable in as much as the 1st and 2nd respondents purported to file the suit for eviction on the grounds set out in the Maharashtra Rent Control Act, 1999. He submitted that the suit was filed by the 1st and 2nd respondents againest the said Vishindas Vazirani (3rd respondent herein) who was admittedly not the tenant of the 1st and 2nd respondents. As the said suit was not between the landlords and tenant, the Court of Small Causes had no jurisdiction. He invited my attention to order dated 28th January 2005 by which the application for amendment was kept in abeyance till the issue of jurisdiction was decided. He invited my attention to the orders passed by the learned trial Judge. He submitted that the order passed by the learned trial Judge on the preliminary issue shows that when the said order was passed, the application for amendment was not decided. He submitted that firstly the application for amendment could not have been decided unless the issue of jurisdiction was decided. He submitted that application for amendment was not at all competent as it was filed in a suit which was not competent in the sense that the Court of Small Causes had no jurisdiction to entertain the suit. In this behalf he has relied upon decisions of the Division Bench of Patna as well Calcutta High Court. He submitted that a complete illegality has been committed by the learned trial Judge. He submitted that the 5 application for amendment could not have been heard at all. 5. I have given careful consideration to the submissions. It will be necessary to refer to the averments made in the application for amendment filed by the 1st and 2nd respondents. In the said application it was stated that there appears to be a mistake in the name of the defendant tenant. As stated earlier, in the suit the defendant-tenant was described as Vishindas D. Vazirani. It was contended in the application for amendment that the correct name of the defendant must be “Nimmi Vazarani” who had filed a suit against the 1st and 2nd respondents. The 3rd respondent filed a reply for contesting the application for amendment. A rejoinder was filed by the 1st respondent in which it was a contended that there was unintentional mistake while incorporating the name of the defendant. 6. It must be stated here that the present petitioner (Nimmi Vazarani) had filed a suit against the 1st and 2nd respondents and the Provident Investment Company Ltd. In the said suit it was contended that M/s.Ebrahim Tyabji & Company were tenants in respect of the suit premises and the petitioner was sub-tenant inducted by the said Ebrahim Tyabji and Co. It was contended that in March 2000 the petitioner was informed by M/s.Ebrahim Tyabji & Company that the said company had sold their business to 1st and 2nd respondents herein and therefore the petitioner should pay rent to the 1st and 2nd 6 respondents. It is contended in the suit that no letter of attornment was issued by M/s.Ebrahim Tyabji & Company. It is contended that as the petitioner was under an impression that tenancy rights of said M/s.Ebrahim Tyabji had been assigned to 1st and 2nd respondents, she has paid rent to the 1st and 2nd respondents. In the said suit the petitioner had referred to the suit filed by 1st and 2nd respondents which is subject matter of the present petition. In the said suit the petitioner has contended that the 1st and 2nd respondents have no right to claim tenancy from M/s.Ebrahim Tyabji & Company and therefore the petitioner has become direct tenant of the 3rd respondent- the Provident Investment Company Ltd. Thus, even going by assertions of the petitioner in this petition and in the suit filed by her, she is admittedly concerned with the suit premises and she is claiming to be in possession of the suit premises as a sub- tenant of M/s.Ebrahim Tyabji & Company. Her contention is that she is not a sub-tenant of 1st and 2nd respondents but she is a direct tenant of the said Provident Investment Company Ltd. In fact, her contention in the suit is that due to wrong impression created that the 1st and 2nd respondent have become tenants, she had paid rent to the 1st and 2nd respondents. The 3rd respondent is the husband of the petitioner. It is obvious that there was an error on the part of the said 1st and 2nd respondents when they impleaded the said Vishindas Vazarani (respondent No.3 herein) as defendant tenant instead of 7 the petitioner. Whether the application for amendment could have been heard before preliminary issue was decided or not is another aspect of the matter. But the trial Court has not committed any error by allowing the amendment by which the present petitioner was permitted to be substituted in the place of said Vishindas Vazarani. The amendment was necessary for correcting an inadvertent error on the part of the 1st and 2nd respondents. 7. In the plaint filed by the 1st and 2nd respondents there are averments that the present petitioner is their tenant. The jurisdiction of the Court is to be determined on the basis of the averments made in the plaint. If the 1st and 2nd respondents on evidence fail to establish that the petitioner is not their tenant or sub-tenant, then the suit is bound to be dismissed. After amendment is carried out to the plaint by impleading the petitioner as a defendant, it is obvious that at this stage it cannot be held that the Court of Small Causes has no jurisdiction to entertain the said suit filed by the 1st and 2nd respondents and therefore the view ultimately taken by the trial Court that the Court has jurisdiction to entertain the suit is correct. 8. What is invoked is extra-ordinary jurisdiction under Article 227 of the Constitution of India. This is a case where by the impugned order substantial justice has been done. Therefore, this is not a case where interference can be made in writ jurisdiction. It is obvious that 8 the 1st and 2nd respondents will have to prove their case that the petitioner is their tenant in respect of the suit premises and only on the basis of the impugned orders, the 1st and 2nd respondents cannot be allowed to contend that the petitioner has been accepted as their tenant in respect of the suit premises. It is obvious that the petitioner will be entitled to defend the suit by filing written statement by raising a contention that she is not the tenant of the 1st and 2nd respondents but she is the direct tenant of the 3rd defendant in the suit filed by her. 9. Subject to what is observed above, the writ petition is rejected. If the petitioner has not filed the written statement, the trial Court will permit the petitioner to file the written statement within a period of eight weeks from today. (A.S.OKA,J)