Bombay High Court
Rajni Mohanlal Shivnani (Mrs.) vs Krishna B. Kapur (Mrs.) on 22 January, 1992
Equivalent citations: 1992(3)BOMCR186
JUDGMENT M.F. Saldanha, J.
1. Rule was made returnable in this matter almost immediately as it concerns the rejection of an application for amendment in the course of a part-heard suit pending before the Court of Small Causes at Bombay. The petitioner-landlady has filed a suit for recovery of possession of a flat occupied by the respondent-defendant. An earlier application for amendment made by her while the matter was part-heard came to be allowed in the month of April 1991. Thereafter another application, being Interim Notice No. 3726 of 1991, for once again amending the Plaint and including a flat situated on the Eastern Express Highway was made. The petitioner-plaintiff's case is that these premises were among those offered to the tenant as an alternative accommodation and that, therefore, the mention of the premises is very essential. She pointed out that instructions had been given to the Advocate earlier for the inclusion of this flat, but that he had left out the same inadvertently. The respondent-defendant has not only contested the veracity of this version but she has sought to point out that the matter is part-heard and that this belated amendment is sought because the respondent-defendant was to bring out these facts in cross-examination, and if that was done, not only would the claim of the petitioner-plaintiff be rendered doubtful but that the suit itself would fail on the ground that the petitioner-plaintiff has sufficient and adequate accommodation and has suppressed material details from the Court. Briefly, the objection was that such cover-up action is not permissible by way of an amendment.
2. Mr. Abhyankar, learned Counsel appearing on behalf of the petitioner-plaintiff, has vehemently contended that the proceedings are in the initial stage and that it was an error on the part of the Advocate in leaving out this flat when the earlier application was made that would result in failure of the entire proceedings and inevitably force his client to file a fresh suit on this ground. He contends that it is, therefore, very much in order for the amendment to be allowed and that the learned trial Judge was in error in having rejected the amendment application.
3. Mr. Shah, learned Counsel representing the respondent-defendant, has submitted that an amendment application must, in the first place, be bona fide and that, undoubtedly, it may be permitted even at a belated stage provided it is an honest attempt to correct a genuine lacuna. Mr. Shah states that the petitioner-plaintiff has suppressed the existence of these premises and on coming to know that the respondent-defendant would expose this fact before the trial Court and that the suit would thereby fail that this is a far from honest application for the purpose of covering up the petitioner-plaintiff having suppressed material information from the Court. He further submits that if the application is allowed, it would interfere with the defence and that, consequently, this Court would be precluded from allowing the amendment while the suit is part-heard because thereby it would prejudice the respondent-defendant's case.
4. Normally, this Court would be slow in allowing an amendment application while the suit itself is part-heard; more so when the application is made after one amendment has been permitted. In this case, however, the error appears to be on the part of learned Counsel and the petitioner-plaintiff ought not to be prejudiced because of that. Furthermore, the refusal to grant the amendment would not only frustrate the present proceedings in all probability but it will give rise to one more suit. These are relevant factors, but this Court cannot and ought not to lose sight of the interconnected issues, namely, the question as to whether the other party would be prejudiced if the amendment were to be allowed. To my mind, that position would remain unchanged because it is certainly open to the respondent-defendant to point out to the trial Court the sequence of events that took place even during the hearing, the point of time when the disclosure was made and to request the Court to draw appropriate inference therefrom. Under these circumstances, the amendment application ought not to have been rejected. The impugned order of the Court of Small Causes dated 19-11-1991 is set aside. The amendment application is allowed on the petitioner-plaintiff paying costs which are condition precedent in the sum of Rs. 500/-. The amendment shall be carried out within a period of two weeks and it shall be open to the respondent-defendant to file additional written statement or reply, if she so desires. The rule is accordingly made absolute. The interim stay to stand vacated. Office to furnish copy of the writ to the trial Court immediately.