Allowed

Sulekha W/O.Ahmed Shaikh and Ors. v. Krishnabai Wd/O.of Baban Rajge and Ors.

Bombay HC3 Apr 2006WP/463/2006

Case brief

AI extract

What is this about?

In a landlord and tenant dispute, the High Court allowed an application for amendment to a written statement filed by a defendant to raise a plea of maintainability. The Court set aside lower court orders and directed the Trial Court to frame issues and allow the defendant to raise the question of jurisdiction.

What did the court decide?

The application for amendment is allowed; orders of Courts below set aside; Trial Court to frame issue and allow defendant to raise maintainability plea.

Sulekha W/O.Ahmed Shaikh and Ors. Vs Krishnabai Wd/O.of… — Landlord and Tenant | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 463 OF 2006

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 Smt. Sulekha Ahmed Shaikh & ors. ... Petitioners

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V/s

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 Smt. Krishnabai Baban Rajge & ors. ... Respondents

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 Mr. S. K. Chaturvedi i/by Chaturvedi & Associates for
 the petitioners.

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 Mr. P.M. Havnur for the respondents.

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CORAM: P.V. KAKADE, J.

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DATED: 3RD APRIL, 2006

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P.C.:

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 1. Heard learned counsel for both parties. Perused the
 record.

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 2. Rule. Rule made returnable forthwith.

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 3. The petitioner defendant has moved this petition
 against the order dated 3.10.2005 passed by the
 revisional Court dismissing the revision application
 against the order passed by the Trial Court dated
 17.6.2005 discharging the notice for amendment.

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 4. The notice was taken out by the defendant No.1 (e)
 submitting that the original plaintiff had filed the
 suit for eviction against the defendant and during the
 pendency of the suit, the original plaintiff has died
 and legal heirs are brought on record. Even during the
 pendency of the suit, the original defendant expired
 leaving behind him the present defendant Nos. 1(a) to
 1(j) who are already brought on record. The original
 defendant had filed his written statement on 25.9.1979.
 Thereafter additional written statement was also filed.
 Issues were framed in the year 1999 and evidence of
 plaintiff was over and defendants’ evidence was about to
 commence when the application for amendment was moved
 challenging the maintainability of the suit on various
 grounds.

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 The Trial Court relying upon the proviso of Order 6 Rule

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 17 of C.P.C. came to the conclusion that the
 application for amendment did not fit in the said
 proviso. The proviso reads thus -

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 "Provided that no application for amendment
 shall be allowed after the trial has
 commenced, unless the Court comes to the
 conclusion that inspite of due diligence, the

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 party could not have raised the matter before

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 the commencement of the trial."

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 5. Therefore the Trial Court was of the view that the
 defendant had not raised the point of jurisdiction at the
 earliest opportunity. The suit was of the year 1999 and
 evidence of the plaintiff was over and proposed amendment
 would not decide the controversy in the suit and hence
 the application came to be rejected.

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 6. The revision was preferred. The revisional Court was
 of the view that respondent did not satisfy the Court on
 the point that inspite of due diligence they could not
 raise the said plea before commencement of the trial. It
 was also observed that the original deceased defendant
 has submitted to the jurisdiction of the Court by
 applying for fixation of the standard rent of the suit
 premises and, therefore, the legal heirs now should not
 say that this Court had no jurisdiction to try and decide
 the suit.

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 7. The learned counsel for the petitioner submitted that
 legal heirs who were brought on record after death of
 original defendant have filed the additional written
 statement but due to change of their advocate they could

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 not take the defence of question of maintainability of
 the suit itself.

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 8. Firstly, it must be noted that even though the
 original defendant had filed an application for fixation
 of standard rent, that does not mean that he was legally
 estopped from raising the issue of maintainability of the
 suit which was based on various grounds. Be that as it
 may, the fact on record shows that the evidence of the
 defendant is to start. Moreover, it is not the case of
 the respondent nor the Courts have observed that the
 amendment sought for is either irrelevant or may change
 the cause of action. In fact, the question of
 maintainability sought to be raised would go to the root
 of the matter and, therefore, it is needless to mention
 that such amendment should have been granted by the Trial
 Court and further should have raised additional issue
 after giving opportunity to the other side to file
 additional written statement.

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 9. It is needless to mention that the law is very
 settled on this point that the amendment can be carried
 out at any juncture of the on going trial or even at the
 stage of appeal and, therefore, the view taken by the
 Courts below appears to be erroneous to the effect that

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 the defendant has not acted with due diligence.

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 10. Under the circumstances, the Rule is made absolute.
 The orders passed by both the Courts below are set aside.
 The application for amendment filed by the defendant is
 allowed.

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 The Trial Court shall allow the petitioner to amend the
 written statement and thereafter raise the relevant issue
 and give opportunity to other side to file additional
 evidence, if any, before the commencement of the evidence
 of the defendant confined to the additional issue to be

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 raised by the Trial Court.

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 All this exercise shall be completed within two weeks
 from the date of this order and both parties shall
 cooperate with the Trial Court.

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 The amendment to be carried out within one week from the
 date of this order.

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 12. In the result, the petition stands disposed of with
 no order as to costs.

Sulekha W/O.Ahmed Shaikh and Ors. v. Krishnabai Wd/O.of Baban Rajge and Ors.

Case brief

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Sulekha W/O.Ahmed Shaikh and Ors. v. Krishnabai Wd/O.of Baban Rajge and Ors.

Case brief

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