Bombay High Court
Mitra Of Archdiocese Of Goa And Daman vs Mr. K. Vijayadharan on 11 June, 1999
Equivalent citations: 2000(1)BOMCR857, 2000(1)MHLJ615, 2000 A I H C 108, (2000) 1 MAH LJ 615, (1999) 4 ALLMR 425 (BOM), (2000) 1 BOM CR 857
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. This petition arises from the Order dated 11-8-98 passed by the second learned Additional District Judge at Panaji in Regular Civil Appeal No. 45/97. By the impugned order, the lower Appellate Court has allowed the application dated 4th November, 1997 filed by the respondent for amendment of the written statement of the respondent in Regular Civil Suit No. 241/88/B.
2. The facts in brief relevant for decision are that the petitioner herein filed Regular Civil Suit No. 241/88/B in the Civil Court, J.D., Panaji on 26-8-1988 for declaration that the respondent has no right of whatsoever nature to the suit house and that he is a trespasser and therefore for his eviction from the suit house. The suit house is situated in the property called 'Mitra' situated at St. Inez within the limits of Panaji Municipal Council and is owned by the petitioner. The case of the petitioner was that one Miss Fernanda Amaral was allowed to reside in the suit house during her lifetime. The said Fernanda expired on 14-5-1988. During her lifetime said Fernanda out of her free will had executed a declaration dated 4-2-1987 to the effect that the suit house was exclusively belonging to the petitioner; that she was occupying the same with the permission of the petitioner with no right of whatsoever nature thereto and that on her death the petitioner would be entitled to take over the suit house. On the death of said Fernanda, the petitioner's representative went to the suit house on 16th May, 1998 in order to lock the same and that time he found the respondent occupying the suit house who, on being requested, refused to leave the same.
3. The respondent while denying the case of the petitioner, disputed the genuineness of the declaration dated 4-2-1987 on the ground that the said document was a fake document. It was his further case that he had been residing in the suit house along with said Fernanda since 1975 with the consent and knowledge of the petitioner. It is further his case that even the funeral rites of the said Fernanda were done by the respondent and he was maintaining and looking after the said Fernanda since 1985 and that therefore the petitioner has no right to evict the respondent from the suit house.
4. The trial Court after hearing the parties and on analysis of the evidence produced by the parties, decreed the suit by the judgment and decree dated 25th June, 1997.
5. Aggrieved by the said decree, the respondent preferred appeal to the lower Appellate Court. During the pendency of the appeal, the respondent filed an application seeking to amend the written statement by introducing 12-A therein as under:---
"12-A The defendant says that as he along with his family are residing in the suit house since the year 1975 with the knowledge and consent of the plaintiff, the defendant is a mundkar within the meaning of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 and therefore this Hon'ble Court is not having jurisdiction to entertain and try the suit."
Simultaneously, the respondent also sought to add an additional ground to the Memo of Appeal as under:---
"(kk) The learned trial Judge had no jurisdiction to pass the decree for eviction against the appellant as he is occupying the suit house as a Mundkar under the Goa, Daman & Diu Mundkars (Protection from Eviction) Act, 1975."
The lower Appellate Court after hearing the parties, by the impugned order, allowed the application filed by the respondent and permitted the respondent to amend the written statement. In short, the lower Appellate Court by granting amendment to the written statement has permitted the respondent to raise the plea of mundkarship under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, hereinafter called as 'The said Act'.
6. Shri J.P. Mulgaonkar, learned Advocate appearing for the petitioner, while assailing the impugned order, stated that the respondent in the written statement had clearly submitted that the pleadings in the written statement do not contain necessary ingredients of the plea of mundkarship, whereas by the application dated 4-11-97 the respondent for the first time sought to introduce the plea of mundkarship in his pleadings. According to the learned Advocate, such a plea is not only belated but is mutually destructive of the plea already raised in the original pleadings. Referring to the pleadings in the unamended written statement and particularly to paras 10 and 14 thereof, the learned Advocate submitted that the pleadings therein clearly disclose that the respondent has admitted payment of rent for his occupation in the suit house; besides the necessary ingredients of section 2(p) of the said Act were essentially absent in the said pleadings. By allowing the amendment, the respondent has been allowed to introduce a new plea which is mutually destructive of the original plea in the written statement. In support of his contention, he sought to rely upon the judgment of the learned Single Judge of this Court in the matter of Smt. Clara Menezes v. Shri John Baptist Rodrigues and another, 1997(2) G.L.T., 294 and of the Apex Court in the matter of Heeralal v. Kalyan Mal and others, .
7. Shri V.K. Bodke, learned Advocate appearing for the respondent, on the other hand submitted that it was nobody's case before the trial Court that the respondent is a tenant in respect of the suit house or that he was paying any rent to the petitioner for his occupation in the suit house. The statement in para 10 of the written statement as regards the rent receipts has to be understood in the context in which it is stated. The learned Advocate submitted that the contents of the said para are in relation to the contents of para 7 of the plaint, wherein the petitioner had pleaded regarding the declaration dated 4-2-1987 by late Fernanda and in that context the respondent has stated that the documents such as rent receipts clearly establish that the contents of the alleged declaration were false. According to learned Advocate the word 'paid' found in the last sentence of para 10 of the written statement has to be read as 'produced' in order to give a proper meaning to the contents of the said para 10 of the written statement. He further submitted that the pleadings in the written statement clearly disclose the basic ingredients of the plea of mundkarship inasmuch as the respondent has clearly stated therein that he had been residing in the suit house since 1975 with the consent and knowledge of the petitioner. Taking into consideration explanation clause of section 2(p) of the said Act, the persons who had been residing in the house of bhatkar for a period exceeding one year prior to the appointed date were deemed to have been residing lawfully with the consent of the bhatkar and in that context once it was stated by the respondent that he had been residing in the suit house since 1975, it was clear from the pleadings that the respondent had pleaded all the facts necessary for raising the plea of munkdarship in his written statement, though specifically the word 'mundkar' was not used therein. It was in that context to clarify the stand of the respondent that the application for amendment was filed. The amendment sought to be introduced does not amount to any new plea nor it is even inconsistent with the pleadings already filed by the respondent. According to the learned Advocate for the respondent the decisions relied upon on behalf of the petitioner were given in a different set of facts inasmuch as in those cases the material facts necessary to support the plea sought to be introduced by way of amendment were missing in the original pleadings and in that context proposed amendment was disallowed. He further submitted that by the proposed amendment the respondent has not sought to introduce any new plea nor has withdrawn any admission.
8. Perusal of the impugned order discloses that the proposed amendment is sought to be allowed on the ground that though specific plea was not taken in the original written statement, yet from a comprehensive assessment, it can be gathered that the plea of mundkarship was not raised. However, while arriving at the conclusion, the lower Appellate Court has neither discussed, the pleadings of the parties nor the order discloses any reasoning to arrive at such a conclusion. In order to say that from the comprehensive assessment it can be gathered that the plea of mundkarship has been raised, it was necessary for the lower Appellate Court to consider the pleadings of the parties and point out the pleadings which lead to such conclusion. In the absence of such an exercise, it cannot be said that the lower Appellate Court had exercised its jurisdiction judiciously and properly. The impugned order apparently discloses improper and arbitrary exercise of the jurisdiction by the Court while allowing the application for amendment of the written statement.
9. As already stated above, by the proposed amendment, the respondent has sought to introduce a plea of munkdarship. There can be no doubt that the contents of para 12-A as far as the same relate to the residence of the respondent in the suit house since the year 1975 with the knowledge and consent of the petitioner were already found in the original unamended written statement in para 12 as well as in para 14. The relevant statement in para 12 in that regard read thus :---
"With reference to this para this defendant states that he along with his family members were residing in the suit house along with the said Fernanda since the year 1975 and the plaintiffs representatives were aware of the same, and the plaintiffs had consented to the same."
In para 14 it was stated thus :---
"With reference to this para this defendant states that he was residing and is residing in the suit house with the consent of the plaintiff and was residing with said Fernanda since the year 1975."
10. In other words, the facts to the effect that the respondent had been residing in the suit house, that he had been residing since the year 1975, that the petitioner was aware of the same and that the petitioner had consented for the stay of the respondent were already stated in the original written statement. What is sought to be introduced by way of amendment is that, the plea of mundkarship within the meaning of the term 'mundkar' in the said Act is sought to be raised specifically along with the plea that the Civil Court has no jurisdiction to entertain and try the suit. The objection sought to be raised to the proposed amendment is two fold. One is that the pleadings do not disclose the plea of mundkarship, besides the new plea being destructive of the plea originally taken and secondly it is belated.
11. The term 'mundkar' has been defined in the said Act under section 2(p) to mean a person, who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any service to the bhatkar and includes a member of his family. The definition further specifically excludes persons of four categories namely a person paying rent to the bhatkar, a domestic servant or a chowkidar, persons employed in a mill, factory, workshop, mine or a commercial establishment and persons residing in a house or out-house as a caretaker of such house or for the purpose of maintaining it in habitable condition. The Explanation clause to the said section further provides that a person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person had been residing in it for a period exceeding one year prior to the appointed date and the bhatkar had not initiated any proceedings during the said period of one year, to evict such person from the dwelling house, through a competent Court of law, on the ground that such person was a trespasser or, having so initiated such proceedings does not succeed in obtaining a decree for the eviction of such a person.
12. Considering the said definition of the term 'mundkar', it cannot be disputed as rightly submitted by Shri Bodke, learned Advocate appearing for the respondent that as far as its ingredients such as 'consent' and 'knowledge' are concerned, the respondent had specifically pleaded the same in the original written statement. The respondent has also stated that he had been residing therein since the year 1975. The said Act came into force with effect from 12th March, 1976. In terms of Explanation clause to the said section 2(p), a person who had been staying prior to 12th March, 1975 are deemed to be lawfully residing with the consent of the bhatkar if the bhatkar had failed to take eviction proceedings within one year prior to the appointed date or having initiated such proceedings has failed to obtain a decree for eviction of such person. It is also not in dispute that no proceedings for eviction of the respondent were ever initiated by the petitioner within a period of one year prior to the appointed date. The original pleadings certainly disclose some of these ingredients of the definition of the term 'mundkar'. However, there is no plea nor it is remotely disclosed in the original pleadings of the respondent that the occupation of the respondent in the suit house is or was of the nature of 'fixed habitation'. So also the respondent had not disclosed the exact date of the year 1975 since when he had been occupying the suit house. The Explanation clause clearly specifies that the occupation has to be for a period of one year prior to the appointed date. In other words, in order to avail benefit under the Explanation clause, the person claiming to be mundkar should have been staying from the date prior to 12th March, 1975. In the absence of disclosure of all the ingredients of the definition of the term 'mundkar' it cannot be said that the party has raised a plea of mundkarship. Mere reference to the year 1975 by itself cannot disclose that the respondent had been residing to prior to 12th March, 1975.
13. At this stage, it will be worthwhile to refer to the judgment of the learned Single Judge of this Court in the matter of Pandu Dhondi Yeurdkar and another v. Ananda Krishna Patil, . No doubt the said judgment is in relation to the framing of issues based on pleadings. The observations therein are very relevant to appreciate the contention sought to be raised on behalf of the respondent. The learned Single Judge therein has observed thus:---
"Under Order 14 of the Code of Civil Procedure an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other. When a vague plea is made by the defendant contending that he is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was created.
Normally the rules of pleadings require that these particulars are the minimum particulars which a man must furnish before he can request the Court to frame an issue as regards the claim made for tenancy".
14. Section 32 of the said Act clearly provides that if any suit instituted in Civil Court involves any issue which is required to be settled, decided or dealt with by the Mamlatdar under the said Act, the Civil Court shall stay the suit and refer the issue to the Mamlatdar for the determination. In other words, whenever an issue of mundkarship arises in a civil suit, the Court will have to stay the suit and refer the issue to the concerned Mamlatdar. However, in order to enable a party to raise the issue, necessary particulars relating to plea of mundkarship must be disclosed in the pleadings filed by the person who seeks to raise the issue of mundkarship. As already seen above, the section 2(p) relates to the term 'mundkar' and clearly requires the person to disclose the facts relating to the consent of the bhatkar to reside in the dwelling house, the facts regarding his lawful residence in the house and the facts in relation to his fixed habitation in such a house. Considering the ingredients as disclosed from the definition of the term 'mundkar' and taking into consideration the pleadings of the respondent in the unamended written statement it is apparent that the contents thereof do not disclose any fact regarding fixed habitation of the respondent in the suit house. Likewise, the respondent has not disclosed the date of the year 1975 since when the respondent had been residing in the suit house. In other words, the pleadings do not disclose all the necessary ingredients of the definition of the term 'mundkar' and therefore it cannot be said that the pleadings in the original unamended written statement are sufficient to disclose that the respondent was claiming mundkarship in relation to the suit house. Even in the proposed amendment there is no disclosure as to the date of the year 1975 since when the petitioner claims to have been residing in the suit house as also the facts relating to his fixed habitation in the suit house. Applying the test laid down by the learned Single Judge in the case of Pandu Dhondi Yeurdkar (supra) it cannot be said that the original pleadings disclose the plea of mundkarship. The learned Advocate for the petitioner is therefore justified in submitting that by the proposed amendment the respondent had sought to introduce a totally new case in the pleadings.
15. Secondly, the plaint was filed on 26th August, 1988, the written statement was filed on 23rd July, 1992, the trial Court decreed the suit on 25th June, 1997 and the appeal was filed by the respondent before the lower Appellate Court on 5th August, 1997. It was only on 4th November 1997 that the respondent thought of amending the written statement by introducing the plea of mundkarship. Apart from stating that the fact of residence of the respondent in the suit house since 1975 and the consent and knowledge of the petitioner being already pleaded in para 12 of the original written statement, no other justification was given in the application for amendment as regards the delay in filing the application. There is nothing on record to snow as to what prevented the respondent from raising the plea of mundkarship before the trial Court either at the time of filing the written statement or before the disposal of the civil suit by the trial Court. Once it is clear that the original pleadings did not disclose sufficient material to frame the issue of mundkarship, it was necessary for the respondent to justify the delay in filing the application for amendment raising the plea of mundkarship. In this respect, the decision of the learned Single Judge of this Court in the case of Smt. Clara Menezes v. Shri John Baptist Rodriques (supra) is certainly material and relevant for the decision in the present case. That was a case where the defendant therein had filed an application for amendment of the written statement after a gap of six years from the date of filing of his original written statement. The original statement was filed on 8-2-1990 whereas the application for amendment was moved on 8-3-1996 and the reason for seeking amendment was stated to be inadvertent mistake and oversight due to which the respondents failed to make specific averments in respect of the suit property. Simultaneously, the defendant therein had also sought to introduce a plea of mundkarship in relation to his occupation in the house which was the subject matter of dispute. Rejecting the contention of the defendant therein while dealing with the revision application against the order of grant of amendment by the trial Court, the learned Single Judge had clearly observed that no sound or valid reasons had been given as to why the averments which were within the knowledge of the party even prior to the filing of the written statement had not been pleaded before the Court and the claim of inadvertent mistake and oversight can by no stretch of imagination be said to be justifiable reason. In the case in hand, it is apparent that the application for amendment was made nearly more than five years after the filing of the written statement and that too without giving any reason for delay. Considering the fact that the plaint was filed on 26th August, 1988 and the written statement was filed on 22nd July, 1992 and the application for amendment of written statement having been filed five years thereafter without giving any reason for delay, there was all the more justification for rejecting the application for amendment.
16. As regards the contention of the learned Advocate for the petitioner that the plea sought to be introduced by way of the proposed amendment is mutually destructive of the plea which was originally raised in the written statement, there is no doubt that in para 10 of the written statement there is reference to the rent receipts and the respondent has also relied upon the rent receipts in the list of documents attached to the written statement. However, as submitted by the learned Advocate for the respondent, the statement in para 10 is not that clear to say that the respondent has admitted that he had been paying rent for his occupation of the premises. A statement to be construed as admission has to be clear in all respects. The statement which is heavily sought to be relied upon by the petitioner in support of his contention that the respondent has admitted the payment of rent, reads thus:-
"Such document vis-a-vis the rent receipts paid by the defendant to the plaintiff makes it clear that the said document is a fake document."
17. As rightly submitted by learned Advocate for the respondent, the statement is necessarily in relation to the document dated 4-2-1987. The contents thereof are therefore to be understood with reference to the contents of the document dated 4-2-1987. There is no specific averment in the plaint that the respondent was paying rent for his occupation to the petitioner. Therefore, it cannot be said that the proposed amendment is mutually destructive of the plea originally raised in the written statement. Nevertheless the original plea raised in the written statement nowhere discloses the issue of mundkarship sought to be raised by the respondent. Similarly, there is no explanation for delay in filing the application for amendment of written statement. Hence, the application for amendment could not have been allowed. It ought to have been dismissed. The impugned order therefore cannot be sustained.
18. The petition therefore succeeds. The impugned order is therefore quashed and set aside. The application filed by the respondent for amendment of the written statement is hereby dismissed. The Rule is made absolute in the above terms with no order as to costs.
19. Petition succeed.