1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.287 OF 2001 IN NOTICE OF MOTION NO.6317 OF 2000 AND CHAMBER SUMMONS NO.1528 OF 2000 IN SHORT CAUSE SUIT NO.3111 OF 1998 Shri Ramashankar Jamunaprasad .... Appellant Gupta. Vs. Shri Radheshyam Badriprasad .... Respondents Gupta & Ors. Mr. K.M. Kore, Advocate for Appellant. Respondents and Advocate absent though served. Coram : SMT. R.P. SONDURBALDOTA,J Date : 11th September, 2008 P.C. 1. By the impugned common order, Bombay City Civil Court has disposed of two applications filed by respondent no.1 / original plaintiff. The first application was a Chamber Summons to amend the plaint and the second application was a Notice of Motion seeking interim injunction in respect of the suit premises. The appellant is the original defendant no. 1. Respondent no. 2 is the original defendant no. 2. The parties will hereinafter be referred to by their original nomenclature. 2. The plaintiff is the tenant and as such in possession of the suit premises bearing census No.MH-267-17- 2 18 situate at Survey No.355-B, Raamshankar Gupta Chowk, Santacruz. Defendant No.1 was the owner of the chawl. In the year 1975-1976, the entire area in which the chawl is situate was declared as a slum. It is the case of plaintiff in the plaint that his premises bearing census No.17/18 admeasures 220 sq.ft. In the year 1986, he put up a wall at the centre of the premises to divide the same into two rooms for the convenience of his family. Both the parts of the room have a separate entrance from the front side with a connecting door on the rear side. Since defendant No.1 did not have the residential premises of his own, at his request, the plaintiff accommodated him in one part of the premises for a temporary period. When defendant No.1 acquired residential premises at Vakola, he vacated the portion of the suit premises on 27th May,1998 and shifted to the new house. However, on 29th May,1998, when the plaintiff was away from the suit premises, he managed to bring some domestic articles on the portion of premises which was earlier in his occupation by making use of the duplicate key with him. The plaintiff also learnt that defendant no.1 is trying to induct defendant no.2 in part of the suit premises. Therefore, he filed the instant suit for permanent injunction restraining the defendants from entering into and remaining upon and/or interfering with and/or disturbing peaceful exclusive use, occupation, possession and enjoyment of the suit premises bearing census No.HH-267-17/18 admeasuring about 220 sq. ft. 3. Defendant no.1 denies the case of the plaintiff 3 contending that he is the owner of the entire chawl. He had let out only one room i.e. 17/18 to the plaintiff. He was himself occupying the adjoining room i.e. room No.18/18. According to him, there was no division carried out of room No.17/18 to carve out another room 18/18 out of it. 4. Earlier the plaintiff had taken out a Notice of Motion for interim injunctions in the same terms as the permanent injunction. That Notice of Motion was allowed by the order dated 4th September,2000. Defendant no.1 preferred an Appeal therefrom being Appeal from Order (St.) No.29460 of 2000. The Appeal from Order came to be disposed of by this Court by the following order : “The learned trial Judge has made the Motion absolute in terms of prayer clause (a) which covers the census structure bearing No. MH- 267-17/18. The learned counsel appearing on behalf of the Appellant states that he has no objection to the grant of relief in terms of prayer clause (a) since both the Notice of Motion as well as the final prayer in the suit are confined to census No.MH-267/17/18. It is clarified that the observations of the learned Judge in the impugned Order are confined to the grant of interim relief which was prayed for and which has been granted to the Plaintiff. The Appeal from Order is rejected.” 5. Soon thereafter i.e. 28th November,2000, the plaintiff took out a Chamber Summons for amendment of the plaint to add to the pleadings and the prayer words “and 18/18” after the words “HH-257-17/18”. He also took out a Notice of Motion for an interim injunction to extend the same 4 to room No.18/18. Both these applications were disposed of by the impugned common order. The Chamber Summons for amendment of the plaint was allowed. As regards the interim order in respect of premises No.18/18, after observing that the premises are under locks of both the parties, the parties have been directed to maintain that status-quo. 6. Being aggrieved by the above order, particularly the order of amendment of the plaint, defendant no.1 has filed the instant Appeal. As regards the order on the Notice of Motion, on prima facie view of the matter, no fault can be found with it. There is serious dispute as regards possession of the room. Both the sides have put their separate locks on it. The Commissioner appointed by the Bombay City Civil Court has found that articles of both the sides are in the room. Therefore, the order rightly directs that the status-quo as found by the Commissioner is required to be maintained. 7. The real grievance of the appellant is as regards the order directing amendment of the plaint. Mr. Kore, learned counsel for the appellant submits that the application for amendment has clearly been made to circumvent the order dated 9th November,2000 passed in the appeal proceedings. Mr. Kore further submits that by allowing the amendment, the Court has prejudged the issue as regards the extent and nature of room No.17/18 and this causes serious 5 prejudice to the appellant. Perusal of the plaint, in particular para nos. 1 and 5 thereof, shows that as per the plaintiff he is a tenant in respect of room No.17 and 18 admeasuring 220 sq. ft. These premises came to be divided by him into two parts by putting up a wall at the centre of the premises. According to him, what is described by the defendant as room No.18/18 forms part of room No.17/18. The description of the suit premises in prayer clause of the plaint is also complete with the area of premises. On the other hand, defendant no. 1 contends that room No.18/18 has always been an independent room and in his occupation as the owner. He has filed Affidavits of three other tenants supporting his contention. Therefore, there is serious dispute as regards the extent of room No.17/18 and room No.18/18 being part of room No.17/18. In these circumstances, granting the amendment of the plaint would cause serious prejudice to the appellant. However, the same cannot be said as regards refusal of the amendment. If the plaintiff is able to establish during trial that the suit premises in fact consisted of an area of 220 sq. ft. with room No. 18/18 being part of it, there would be no difficulty for granting protection in respect of the entire premises. Therefore, there was no need to grant the application for amendments and the order to that extent is required to be set aside. It will however have to be clarified that the order of interim reliefs granted on the Notice of Motion in respect of room No.18/18 will have to be treated as order in respect of the room which according to the plaintiff forms part of 6 room No.17/18. 8. In the circumstances, the Appeal from Order is partly allowed. The Order on Chamber Summons No.1528 of 2000 is set aside. The Chamber Summons No. 1528 of 2000 is dismissed. Costs to be cost in cause. (SMT. R.P.SONDURBALDOTA,J)