Bombay High Court
Noor Kabirdin Meghani And Ors vs Sanjeev Manuel D'Souza on 22 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 911
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
10-WPST-4248-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO.4248 OF 2020
Noor Kabirdin Meghani & Ors. ... Petitioners
Vs
Sanjeev Manuel D'Souza ... Respondent
...
Mr. Sajid Shamim with Mr. Murtuza Slatewala for the
Petitioners.
Mr. Dakshesh Vyas i/by Mr. Amol V. Kumeria for the
Respondent.
CORAM : SANDEEP K. SHINDE J.
DATE : 22nd MARCH, 2021.
ORAL JUDGMENT:
Rule. Rule made returnable forthwith. With consent of the parties, matter is taken up for fnal hearing at the stage of admission itself.
2 Petitioners, are defendants in Eviction Suit No.272/5824 of 2004, instituted by the respondent no.1. Pending suit, the learned Trial Court granted leave to amend the plaint, vide order dated 2 nd December, 2019. Shivgan 1/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 :::
10-WPST-4248-2020.odt Felt aggrieved, petitioners had preferred Miscellaneous Civil Appeal. The Appellate Bench dismissed, the appeal on the ground that appeal was not maintainable-in- law. Thus, aggrieved defendants have approached this Court under Article 227 of the Constitution of India.
3 Back-ground facts as approached by the petitioners are as under:
Sanjay M. D'Souza (respondent/plaintiff through his constituted attorney, Ms. Maria M. D'Souza (motherf let out suit premises to the petitioners/defendants under writing dated 28th May, 1994. In 2004, respondent instituted the eviction suit for breach of clause (vf of the writing dated 28th May, 1994 for sub-letting the possession of the suit premises to a third party. In paragraph 4 of the plaint, plaintif averred that in 2002, defendants had unlawfully and without plaintif's consent, inducted a third party in the suit premises, taking advantage of absence of plaintif from Shivgan 2/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt India. Thus, alleged, defendants have committed breach of the terms and conditions of tenancy and hence, plaintif is entitled to recover possession under Section 16(1f(ef of the Maharashtra Rent Control Act, 1999. Yet another ground on which eviction is sought is that defendants, without plaintif's consent, in writing, erected on the suit premises a permanent structure. Besides, also alleged that premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit.
Written Statement:
4 Defendants resisted the suit. In paragraph 7 of the Written Statement, it is pleaded that defendants came in contact with constituted attorney of the plaintif, through previous tenants, and during the course of the meeting, constituted attorney was clearly told that defendants were not going to occupy suit premises themselves as, at that Shivgan 3/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt time, they had their own suitable residential accommodation, where they have been living and that they were interested in taking the suit premises by way of investment only and they will be letting out suit premises to diferent licensees on leave and licence basis. It is defendants' case that constituted attorney of the plaintif had agreed to the said term but told that, in order that Bombay Municipal Corporation do not increase rate-able value of the property on account of letting, defendants would be required to record usual terms of the tenancy. It is further pleaded that constituted attorney told defendants that, as and when premises would be given on leave and licence basis, she will charge 1/3rd of the licence fees as extra amount for her consent and she will witness all the leave and licence agreements by way of consent for giving it to diferent parties. Defendants would contend that the said agreements have also been acted upon. It is, therefore, contended that plaintif is estopped from contending otherwise recording the rights of the defendants to give suit Shivgan 4/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt premises on leave and licence basis. Defendants would also contend that when suit premises were given on leave and licence basis, agreements were prepared by the advocate for the plaintif and in all the agreements, she had signed as witness and charged extra amount for the same. Admittedly, defendants did not produce leave and licence agreements, at the appropriate stage but craved leave to refer and rely, on leave and licence agreements. Defendants, therefore, denied that they had unlawfully sub- let the premises as alleged and further denied plaintif's entitlement to recover possession of the suit premises on this ground. In paragraphs 9 and 10 of the Written Statement, defendants contended that they were always ready and willing to pay extra amount as and when premises are given on leave and licence basis and all these years and in fact, since inception of tenancy, defendants with the knowledge and consent, have been giving suit premises on leave and licence basis to diferent persons. . Indisputably, plaintif/respondent no.1 has appointed Shivgan 5/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt his mother as constituted attorney and terms of the tenancy of the suit premises were settled by his constituted attorney because, the plaintif is ordinarily not residing in India.
5 Be that as it may, on 7th August, 2015, plaintif fled an afdavit in lieu of evidence. Hee was cross-examined by the defendants on 18th December, 2018; wherein he admitted that in 1994 when subject tenancy was created, he was not in India. This admission fortifes the fact that plaintif's constituted attorney settled terms of the tenancy. Hee would also admit that most of the times, he is not residing in India and since inception of tenancy, his mother was managing the suit property and was also issuing rent receipts. While, under the cross-examination, plaintif was confronted with originals of leave and licence agreements dated 23rd May, 1997, 28th June, 1998, 23rd May, 2000 , 23rd May, 1999 and 23rd June, 2001. Plaintif admitted these leave and licence agreements, which bore her mother's Shivgan 6/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt signature as witness. Hee was also confronted with rent receipts and, agreement for hire of furniture, dated 23 rd May, 1997. Plaintif admitted signature of her mother on all these documents, which were marked Exhibits 49 to 53 and 54 to 56.
6 Thus, prima-facie, it is to be held that suit property was sub-let by the defendants with the knowledge and consent of the plaintif's constituted attorney. 7 Soon after his cross-examination, on 8th January, 2019, plaintif fled an application purportedly under Order 6 Rule 17 of the Code of Civil Procedure, 1908 seeking for leave to amend the plaint. Schedule of amendments reads as under:
"3A. During the cross-examination of Plaintif on 18 th December, 2018, the advocate for Defendants produced certain rent receipts, leave and licence agreements and Agreements for the hire of furniture, copies whereof were not annexed to the written statement. The rent receipts were Shivgan 7/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt marked as Exhibits 46 to 48, Leave and Licence agreements were marked as Exhibits 49 to 53 and Agreements for furniture were marked as Exhibits 54 to 56.
3B. The Plaintif was not residing in India and his mother was looking after the suit premises till year 2004. It was only at the time of cross examination dated 18th December, 2018, the Plaintif was shown the said leave and licence agreements and agreements for furniture wherein his mother appears to have signed as witness. When the Plaintif enquired with his mother about the aforesaid leave and licence agreements and agreements for furniture, the Plaintif's mother informed that she did not remember as to when she may have signed the aforesaid documents. The Defendants had good relations with Plaintif and his family members. The Plaintif was out of India at the time when the aforesaid documents were executed. The Defendants could have misrepresented to the Plaintif's mother that certain signatures were required on documents without explaining her contents of the said documents. Believing the words of the Defendants the Plaintif's mother could have signed the aforesaid documents as witness. The documents from Exhibit 49 to Exhibit 53 are all unregistered leave and license agreements.
3C. The said leave and license agreements and agreements for furniture, clearly show that the Defendants have been sub-letting the suit premises or giving the suit premises on license by executing leave and license agreement and have been profteering from the suit premises. The aforesaid facts and documents clearly show that the Defendants had violated clause 5(vif of the said writing dated 20th May, 1994, which is not disputed by the Defendants in their written Shivgan 8/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt statement. The Plaintif is therefore entitled to recover possession of the suit premises under Section 16(1f(mf of the Maharashtra Rent Control Act, 1999."
. In the body of the application, he pleaded ignorance of the leave and licence agreements. In application, he would say, that these documents were executed when he was out of India and possibly that the defendants would have misrepresented his mother for signing the documents without explaining the contents of it. In paragraph 6 of the application, it is averred that after going through the aforesaid leave and licence agreements and agreement for furniture, he perceived, that the defendants were sub-letting the suit premises and were profteering therefrom. On the back-drop of these facts plaintif now, seeks to recover possession of the suit premises on the ground enumerated under Section 16(1f (mf of the Maharashtra Rent Control Act, 1999. Clause (mf reads as follows:
Shivgan 9/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 :::
10-WPST-4248-2020.odt "(mf that the rent charged by the tenant for the premises or any part thereof which are sub-let is in excess of the standard rent and permitted increases in respect of such premises or part or that the tenant has received any fne, premium, other like sum of consideration in respect of such premises or part; or "
8 The learned Trial Court granted the application on the ground, that the Court is empowered, at any stage of proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just and the proposed amendment being in nature of subsequent event, it was necessary for purpose of determining real question of controversy between the parties. For these two reasons, application was allowed and permitted plaintif to amend the plaint as per the schedule. 9 Aggrieved defendants, approached the appellate Bench. Heowever, the Bench declined to entertain the appeal vide order dated 24th January, 2020. Shivgan 10/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt DISCUSSION & REASONS:
10 Proviso, to Order 6 Rule 17 mandates that no application for amendment shall be allowed after commencement of trial, unless Court comes to conclusion that in spite of due diligence, the parties would not have raised the matter before the commencement of the trial. Trial in the civil suit commences from the date of fling of afdavits in lieu of examination-in-chief of the witnesses and, therefore, proviso to Order 6 Rule 17 of the Code comes into play only after fling of such of the afdavit in lieu of examination-in-chief of the witnesses . In the back- drop of the facts of the case, it cannot be said that plaintif was unaware of the fact that the suit premises were sub-let by the defendants. In fact, defendants in their Written Statement categorically stated that they were sub-letting suit premises to diferent parties with the consent and Shivgan 11/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt knowledge of the plaintif's constituted attorney. Written statement was fled on 29th November, 2004; whereas the application seeking leave to amend the plaint was fled in January, 2019. As such, the averments of the plaintif in the application, to amend the plaint, that after his cross- examination when he enquired with the mother about leave and licence agreements with which he was confronted to, his mother informed him that she did not remember as and when she had signed aforesaid documents, was clearly after thought. Averments in paragraph 5 of the application seeking leave to amend the plaint are to be rejected on the face of it because in the Written Statement, defendants had disclosed that they had sub-let the premises to diferent parties under the leave and licence agreements with consent of constituted attorney of the plaintif. Under these circumstances, the plaintif's assertion that he was unaware of the fact of sub-letting and he perceived it, during his cross-examination and, therefore, it constitutes subsequent events, is obviously incorrect and to be rejected on the face Shivgan 12/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt of it. No doubt, that where suit for ejectment of tenancy is fled on certain grounds, subsequent addition of fresh ground in the plaint does not change the nature of the suit and, therefore, amendment to add such new grounds is permissible. In the case of Smt. Abnash Kaur v. Dr. Avinash Nayyar1, Full Bench of the Delhi Heigh Court has held that if a new ground for recovery of possession under Rent Control Legislation arises after the fling of the petition then that can also be combined with previously existing grounds. Landlord can either fle new suit on these grounds or he may apply for amendment in existing eviction petitions and urged this ground also. It is said that in practice, it is undesirable for the landlord to pursue two diferent petitions for eviction on diferent grounds and that he should be allowed to amend his suit to cover new ground also. In the case in hand, the plaintif had fled suit also on the ground of sub-letting under Section 16(1f(ef of the Maharashtra Rent Control Act. What is now sought to be 1 AIR 1975 Delhi 46 Shivgan 13/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt added is a ground under Section 16(1f(mf. The averments in the application seeking amendment to the plaint is lacking the details of the rent allegedly charged by the defendant was in excess of standard rent and permitted increases for the premises sub-let by him. In fact, the ground for eviction contemplated under Clause (mf of Section 16(1f could be said to be available to the plaintif when the suit was instituted and, therefore, it is neither subsequent event nor a new ground for recovery of possession that arose after fling of the suit. 11 In so far as subsequent events are concerned, indisputably, the Court has power to take note of such subsequent events subject to conditions being satisfed as held and laid down by the Apex Court in the case of Ramkumar Barnwal v. Ram Lakhan2, conditions thus, (if that the relief, as claimed originally, has, by reason of subsequent events, become inappropriate or cannot be granted;
2 2007(5) SCC 660 Shivgan 14/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt (iifthat taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iiif that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of the procedural law so that opposite party is not taken by the surprise.
. The facts of the case do not satisfy either of these conditions. Heerein the subsequent event has neither rendered the original relief inappropriate nor subsequent event would shorten the litigation nor it can be said that it was brought to the notice of the Court promptly. In-fact, plaintif's assertion, that of sub-letting and profteering is subsequent event, was a futile attempt in the back-drop of the averments in the Written Statement by the petitioners. Admittedly, the application seeking for amendment to the plaint was moved after commencement of the trial. The facts of the case and the evidence on record does not suggest Shivgan 15/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 ::: 10-WPST-4248-2020.odt that in spite of due diligence that the plaintif could not have raised or sought amendment before commencement of the trial.
12 In consideration of the facts of the case and for the reasons stated here-in-above, the impugned order dated 2nd December, 2019 passed below Exhibit 58 in R.A.E. Suit No.272/584 of 2004 by the Court of Small Causes, Bombay is quashed and set aside. Efect if at all given to the amendment be struck of. The petition is allowed in aforesaid terms and rule is discharged.
(SANDEEP K. SHINDE, J.) Shivgan 16/16 ::: Uploaded on - 31/03/2021 ::: Downloaded on - 02/09/2021 23:38:51 :::