1 901.11-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 901 OF 2011 Motichand Raghunath Ahir @ Yadav. ... Appellant. V/s. Radhabai w/o Krishna Sawant and another. ... Respondents. S.M.Sakhardande i/b. P.H.Dharmadhikari for the appellant. M.N.Dhamal for the respondent. CORAM: R.M.BORDE, J. DATED : 10th October 2011. P.C. : By this appeal from order, the appellant is raising exception to the order dated 7th May 2011 passed in Review Application No.16/2010 in Chamber Summons No.234/2008 in Suit No. 5380/1979 whereby, while allowing the review application tendered by the original plaintiff- landlady, the learned Judge of the City Civil Court passed following order: “1. Review Petition is allowed and made absolute in terms of prayer clause (a), which reads as under: “The order dated 9.9.2009 passed by this Hon’ble Court only to the extent of not allowing specifically clause (b) of the Chamber Summons No.234/2008 2 901.11-ao in S.C.Suit No.5380/1979 permitting the plaintiff to carry out the amendment to the Plaint be set aside, reversed and the said Chamber Summons be made absolute in terms of prayer clause (b) of the same and the plaintiff be permitted to carry out the amendment to the plaint also by allowing this Review Petition”. 2. Plaintiff to carry out amendment within 14 works days. 3. Parties to bear their own cost. At this stage, advocate for respondent No.2 tenders an application to stay effect and operation of the present order for eight weeks as he intends to approach Hon’ble High Court against present order. Request being reasonable, the effect and operation of the present order stayed for six weeks from today. Review Petition disposed off in terms of above.” 2. It is a peculiar case wherein the original plaintiff- landlady after securing a decree in respect of eviction of the tenant in the year 1996 after a long legal battle is yet to receive the fruits of the decree. It is not controverted that the appellant herein is the original defendant No.2- tenant whereas the respondent is the original plaintiff- landlady and a decree for eviction was passed directing eviction of the tenant in S.C.Suit No. 5380/1979. The tenant filed appeal against the decree of the trial Court being First Appeal No.1583/1996 and during 3 901.11-ao continuation of the first appeal interim stay was granted in favour of the tenant. As a result of failure on the part of the tenant to deposit the rental amount, which was a condition precedent, stay granted by this Court came to be vacated. Ultimately, first appeal also came to be dismissed on the failure of the the appellant- tenant to take appropriate steps in the matter. The appellant- tenant presented application seeking review of the appellate order which also came to be turned down. The tenant, thereafter, preferred S.L.P. before the Apex Court raising exception to the order passed in the review application. However, S.L.P. also came to be dismissed. As such, the decree passed by the trial Court has attained finality. 3. The controversy arose in respect of number of the tenanted premises which was mentioned in the decree as well as record of the suit. It was mentioned as “Sawant House 168”, Kurla Bombay- 400 070. The landlady while executing the decree realized that the number of the suit premises was mentioned wrongly in the proceeding and it should be “Sawant House 167”, Kurla, Bombay- 400 070. As such she tendered an application in the S.C.Suit No.5380/1979 before the trial Court being Chamber Summons No.234/2008 seeking amendment to the decree as well as to the plaint for correcting the house number from “Sawant House 168” to “Sawant House 167”. The chamber summons was made absolute in terms of prayer clause (a). The learned Judge dealing with the chamber summons, however, observed that decree only needs correction and that the plaint presented by the plaintiff cannot be permitted to be amended at the stage of execution of decree. In nutshell, the learned Judge while deciding chamber summons refused to grant relief in terms of prayer clause (b). The defendant- 4 901.11-ao tenant filed review application being Review Petition No.18/2009 assailing the order passed in Chamber Summons No.234/2008. While deciding the said review application, the prayer which was not granted at the instance of the plaintiff- landlady in respect of effecting amendment to the pleadings was considered by the trial Court and the plaintiff- landlady was permitted to carry out amendment in the plaint. The order passed in the Review Petition No.18/2009 was subject matter of challenge in Writ Petition No.3406/2010 at the instance of defendant- tenant. The High Court dealing with writ petition confirmed the order of dismissal of review petition. However, the part of the order impugned in the writ petition, by which the original plaintiff- landlady was permitted to carry out amendment to the plaint in terms of prayer clause (b) of the chamber summons, came to be set aside with liberty to the plaintiff- landlady to file appropriate proceeding including the proceeding challenging the part of the order passed in Chamber Summons No.234/2008 by which prayer for amendment was rejected. While dealing with the issue, learned single Judge of this Court in para-11 of the order observed thus: 11 Now, coming to the merits of the review petition, there is a finding recorded in the Chamber Summons which has been already quoted above to the effect that there is no dispute regarding identity of the suit premises in respect of which the decree for possession has been passed. As noted by the trial Court in the order on the Chamber Summons, there were no two separate properties by the name Sawant House bearing house nos.167 and 168. In fact, the Court rightly observed that there is no house such as Sawant House 168, Bombay 400070. With a view to give true meaning to the decree for possession which has attained finality, the trial 5 901.11-ao Court permitted the amendment of the decree. The said order was legal and proper in view of the fact that there was never any dispute regarding identity of the suit premises. Therefore, the learned trial Judge was right in rejecting the prayer for review of the order granting prayer clause (a) of the Chamber Summons. Therefore, impugned order in so far as it rejects the review application will have to be confirmed. However, the other part of the impugned order will have to be set aside with liberty to the first respondent to file appropriate proceedings as regards rejection of the prayer clause (b) of the Chamber Summons no. 234 of 2008. (emphasis supplied) In exercise of the liberty granted by this Court, the original plaintiff/ respondent herein tendered Review Application No.16/2010 seeking review of the order passed passed in Chamber Summons No.234/2008. The said review application was considered by the Judge, City Civil Court and, after giving opportunity of hearing to all the parties, learned Judge allowed the said review application and permitted the plaintiff- landlady to amend the plaint. 4. It is contended by the appellant that presentation of the application seeking review of the order is not the remedy within contemplation of the order. While disposing of writ petition this Court had granted liberty to the original plaintiff- landlady to adopt appropriate proceedings seeking amendment to the plaint. However, according to the learned counsel for the appellant, tendering application seeking review of the order passed in chamber summons is not a proper remedy. It is contended that the learned trial Judge has 6 901.11-ao also erred in allowing the review application as there was no new material disclosed nor any new ground raised and, therefore, the exercise of review jurisdiction by the trial Court was beyond the competence of the Court. 5. I have perused the order passed by the learned Judge of the City Civil Court as well as the order passed by the learned single Judge of this court while disposing of Writ Petition No.3406/2010-. In my opinion, tendering of review application is one of the courses contemplated by this Court while granting liberty to the plaintiff to adopt appropriate proceedings for securing an order of amendment to the pleadings. It is to be noted that the proceedings for eviction of the tenant were initiated in the year 1979 and decree was passed in the year 1996 which attained finality. Merely on account of error in mentioning the number of suit house, the fruits of the decree accruable to the plaintiff- landlady after a long legal battle cannot be denied. On the face of the record, I do not find any illegality committed by the trial Court while allowing review application. 6. Counsel appearing for the appellant has invited my attention to the judgment of the Apex Court in the case of Kunhayammed v. State of Kerala, (2000) 6 SCC 359 and contended that once the High Court decision attains finality and the order passed by the trial Court merges in the order passed by the High Court, it is not open for the trial Court to exercise review jurisdiction and entertain the application tendered by the original plaintiff. The distinguishing feature in the instant matter is that learned single Judge while deciding writ petition presented by the defendant- tenant has granted liberty to 7 901.11-ao the plaintiff- landlady to take appropriate proceeding for seeking relief in respect of amendment to the pleadings. In view of the liberty granted by learned single Judge, an application was made seeking amendment to the plaint. In my opinion, the trial Court has rightly granted the review application of the plaintiff- landlady allowing her to carry out amendment. There is no substance in the appeal from order. Appeal from order is, thus, dismissed. In view of dismissal of appeal from order, pending civil application does not survive and stands disposed of accordingly. 7. Time to carry out amendment to the plaint is extended by further period of four weeks from today. 8. At this stage, learned counsel for the appellant makes a prayer for staying the execution of the decree for a period of eight weeks. Considering the fact that the decree is passed in favour of the plaintiff- landlady as back as in the year 1996 relating to the proceeding presented in the year 1979, I do not deem it proper to grant further time. The oral request made, thus, stands rejected. (R.M.BORDE, J.)