1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8209 OF 2009 Balkrishna Purushottam Sanyasi @ Shimpi .. Petitioner versus Ashok Narhari Jog (deceased) & Ors. .. Respondents Mr.G.S.Godbole i/by Mr.Ashok B. Tajane for the petitioner. Mr.N.V.Wavalkar, Sr.Advocate i/by Mr.S.N.Chanchrachud for respondent Nos.2 to 5. CORAM : A.S.OKA, J. DATE : 18th March 2010. JUDGMENT: . On 29th September 2009, notice was issued to the respondents. On 12th January 2010 this Court directed that the petition shall be decided finally at the stage of admission. Accordingly, petition was taken up for final disposal on the last date and submissions of the learned counsel appearing for the parties were heard . The hearing was concluded on 8th March 2010. 2. The petitioner is the original plaintiff and the respondent Nos.1 to 4 are the original defendants. The respondent No.5 has been ordered to be added as a party by the Appellate Court under the 2 impugned order. 3. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. The petitioner is the owner and landlord of the suit property more particularly described in paragraph 1 of the plaint. The case of the petitioner is that in the suit premises he was running a business under the name and style of “Swagat Dinning Hall”. The case of the petitioner is that the 1st respondent is the statutory tenant in respect of the suit premises. The suit for eviction was filed by the petitioner in the Court of Small Causes at Pune. One of the grounds in the suit is of unlawful subletting or unlawful transfer of the suit premises by the 1st respondent in favour of 2nd to 4th respondents. The suit was contested by the respondents and a decree for possession has been passed by the trial Court. An appeal was preferred by the 1st to 4th respondents which is pending before the District Court. The appeal has been admitted for final hearing. 4. In the pending appeal, an application was made by the respondent Nos.1 to 4 for amendment of the written statement. By the proposed amendment, it was sought to be contended by the 1st to 4th respondents that the 1st respondent has assigned running business in the suit premises along with good will and stock –in-trade in favour of 3 2nd to 4th respondents. It was alleged that incidental to the transfer of the business , the tenancy rights have been transferred to 2nd to 4th respondents under a registered Deed of Assignment. Along with the said application, the 1st to 4th respondents made an application under Rule 27 of Order XLI of the Code of Civil Procedure, 1908 seeking permission to produce additional evidence. In the said application reliance was placed on the alleged registered Deed of Assignment and other documents. Permission was sought to produce the registered Deed of Assignment and other documents. 5. By order dated 26th February 2004 both the aforesaid applications were allowed by the Appellate Court. The petitioner preferred Writ Petition No.5832 of 2004 for challenging the order by which application for amendment of the written statement was allowed. Writ Petition No.10408 of 2004 was preferred by the petitioner for challenging the order of the Appellate Court by which the permission was granted to file documents on record by way of additional evidence. Both the writ petitions were allowed by this Court and the orders of the Appellate Court were quashed and set aside. Thereafter, an application was made at Exhibit 37 by the 5th respondent. A prayer was made in the said application by the 5th respondent for granting permission to the said respondent to be 4 impleaded in the suit as a defendant. A prayer was made directing the petitioner to amend the plaint accordingly. In the said application reliance was placed on the alleged transfer of running business with goodwill and stock-in-trade by the 1st respondent in favour of the 2nd to 4th respondents. It was alleged that initially the 2nd to 4th respondents were operating the business on the basis of a loose partnership and the 5th respondent-Company has been incorporated by the 2nd to 4th respondents. By the impugned order dated 4th May 2009 , the said application at Exhibit 37 has been allowed and the 5th respondent has been permitted to contest the suit by adding himself as a defendant. This is the order impugned in this writ petition under Article 227 of the Constitution of India. 6. The learned counsel appearing for the petitioner pointed out that an attempt was made by 1st to 4th respondent by making an application for amendment of the written statement for the purposes of relying upon alleged Deed of Assignment executed by the 1st respondent in favour of 2nd to 4th respondents. Though the amendment was allowed, the order permitting amendment has been set aside by this Court. He pointed out that permission was granted by the Appellate Court to the 1st to 4th respondents to produce the Deed of Transfer. He pointed out that even the said order has been 5 set aside by this Court. He invited my attention to judgment and order dated 20th September 2004 passed by this Court in Writ Petition No. 5832 of 2004. He submitted that in view of the observations made by this Court, application at Exhibit 37 could not have been allowed. He submitted that the suit was for eviction under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 and in any case the 5th respondent was neither a necessary nor a proper party to the suit. 7. The learned senior counsel appearing for the 2nd to 5th respondents supported the impugned order. He submitted that rights have been created in favour of the 5th respondent on the basis of the registered Deed of Assignment and the 5th respondent being in possession is a necessary party to the suit for eviction as the said respondent will be affected by the decree passed in the suit. He submitted that the 5th respondent was not a party to the earlier writ petitions filed in this Court and therefore, merely because applications made by the 1st to 4th respondents for amendment of written statement and for production of additional evidence were rejected, the said orders will not come in the way of 5th respondent. 8. I have given careful consideration to the submissions. It must be stated here that the 1st respondent has died during the pendency of 6 the appeal. It is not in dispute that as of today the legal representatives of the 1st respondent have not been brought on record of the pending appeal. 9. The trial Court has passed a decree against the 1st to 4th respondents under section 13(1)(e) of the said Act of 1947. The finding recorded by the trial Court is that the 1st respondent has sublet the suit premises to 2nd to 4th respondents. In the application for amendment of the written statement it was sought to be contended that by executing a registered Deed of Assignment the 1st respondent has assigned running business as well as goodwill and incidental to that, the tenancy rights have been transferred to the 2nd to 4th respondents. In short, a contention was sought to be raised that as there is a registered Deed of Assignment executed by the 1st respondent, it will not amount to unlawful subletting. The said application was allowed by the Appellate Court. The permission to produce Deed of Assignment by way of additional evidence was also granted by the Appellate court. 10. By judgment and order dated 20th September 2004 passed by this Court in Writ Petition No.5832 of 2004 , the order passed on application for amendment of the written statement was set aside by this Court. In paragraph 13 of the judgment this Court observed thus: 7 “13. As already pointed out above, the proposed amendment relates to the facts which are stated to have occurred, undoubtedly, after the filing of the suit, but before the disposal of the suit. Being so, merely because the application is filed within a period of three years from the date on which the facts sought to be introduced by way of the amendment would not justify the order allowing the application for amendment. It is necessary for the Court dealing with such application to consider whether there was sufficient opportunity for the applicant to approach the Court with the amendment application at any earlier point of time and this aspect is to be considered with all the required seriousness when such application is filed at the appellate stage. The impugned order nowhere discloses any such exercise by the lower Appellate Court while allowing the application.” In paragraph 15 this Court observed thus: “15. In the case in hand, it is the case of the respondents themselves that in order to disprove the claim of the petitioner about subletting of the premises, the document of the alleged assignment of business executed and registered on 12.10.2001 was absolutely necessary and would make a lot of difference on the ultimate decision to be arrived at by the Court on the point of order of eviction on the ground of subletting. If that was to the knowledge of the applicant as has been contended by the respondents, it was absolutely necessary for the respondents to disclose the justification for delay in filing such application and the reasons for not filing such application prior to the disposal of the case by the trial Court. The grounds given are only in the nature of absence of prejudice to the petitioner ......” In paragraph 16 this Court held that the amendment will cause prejudice to the petitioner. Thereafter, this Court proceeded to observe thus: 8 “.... Mere contention that the deed dated 12.10.2001 and the alleged fact of assignment of business would be sufficient to disprove the case of the petitioner regarding the subletting of the premises cannot be construed as sufficient to hold that the proposed amendment to be material and necessary within the meaning of the said expression under Order 6, Rule 17 of the C.P.C, in the facts and circumstances of the case.” While allowing the petition , this Court observed that parties to the litigation have no right to prolong the matter or to delay the matter even by taking shelter of provisions of law. Even the other order passed on application for production of additional evidence was set aside by this Court. 11. The 5th respondent is claiming on the basis of the same Deed of Assignment. An attempt was made by the 1st to 4th respondents to amend the written statement for relying upon the said Deed of Assignment and to produce the same by way of additional evidence. Permission has been denied to the said respondents by this Court. Now by this back-door method, the 5th respondent wants to rely upon the same document. It must be noted here that the application made by the 5th respondent has been signed by the 3rd respondent. Even the 3rd respondent appears to have filed an affidavit in support of the said application. Thus, an attempt was made by the respondents to do something which was not permitted by this Court. The Appellate 9 Court has completely glossed over the effect of the orders passed by this Court which are referred to above. Apart from the fact that the said application could not have been allowed in the light of the earlier orders passed by this Court, it must be noted here that the suit is under section 28 of the said Act of 1947. Therefore, a stranger is not entitled to be impleaded as a party to the suit. 12. The impugned order is completely illegal and deserves to be quashed and set aside. By reason of such methods adopted by the respondents , the appeal of the year 2003 has remained pending and therefore appeal deserves to be expediated. 13. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 4th May 2009 is quashed and set aside and application at Exhibit 37 stands dismissed. (b) Hearing of the appeal is expedited and Appellate Court will endeavour to conclude the hearing on or before 31st August 2010. (c) The writ petition is allowed in above terms. (A.S.OKA,J)