Dismissed

Pushpa Kishanlal Jain v. Delna Cyurus Irani and Anr.

Bombay HC20 Jan 2023WP/835/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order whereby the Small Causes Court rejected a petition for amendment of the written statement at the appellate stage, finding the petitioner failed to demonstrate due diligence as required under Order VI Rule 17 CPC, and held that no writ jurisdiction intervened as the matter was更适合ly decided at the trial level.

What the court decided

AI extract

Pushpa Kishanlal Jain Vs Delna Cyurus Irani and Anr. — Property and Title | Bombay HC (2023)

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Pallavi

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Digitally signed PALLAVIMAHENDRAWARGAONKAR by PALLAVIMAHENDRAWARGAONKARDate:2023.01.24 19:00:23 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.835 OF 2023

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Pushpa Kishanlal Jain … Petitioner
Versus

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Delna Cyurus Irani and Anr.… Respondents

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Mr. P.J. Thorat i/b. Ms. Aditi S. Naikare, for the Petitioner.
Mr. Roop M. Vasudeo, for the Respondent No.1.

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CORAM: MADHAV J. JAMDAR, J. DATE : 20^th JANUARY, 2023

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P.C.:

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1. Heard Mr. P.J. Thorat, learned counsel appearing for the Petitioner and Mr. Vasudeo, learned counsel appearing for the Respondent No.1.

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2.The Petitioner who is original tenant, by way of the present
Writ Petition filed under Article 227 of the Constitution of India, has
challenged order dated 19th August 2022 passed by the learned
Appellate Bench of Small Causes Court, Bombay below Exh.32 in
Appeal No.156 of 2016.

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3.By the said application bearing Exh.32, the Petitioner i.e. the
original Appellant has sought to amend the written statement. By the
impugned order, the said Exh.32 application i.e. amendment
application seeking amendment in written statement at the appellate

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stage is rejected.

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4. Before considering the legality of the impugned order, it is relevant to note few factual details:-

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(i) Respondent No.1 filed R.A.E. Suit No.65/90 of 2010 on 4^th January 2010 on the ground of reasonable and bonafide requirement. Said suit was decreed on 12^th February 2016 and Appeal No.156 of 2016 was filed challenging the impugned judgment and decree.

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(ii) Petitioner filed Exh.22 application in Appeal No.156 of
2016 under Order XLI Rule 27 of the Civil Procedure Code,
1908 seeking permission to lead additional evidence. The said
application was filed on 7th November 2017. It is relevant to
note the prayers made in the said application, which read as
under:-

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“(a)That by an Order of this Hon’ble Court, the Applicants be permitted to produce and/or lead additional evidence as per the provisions of Order 41 Rule 27 of Code of Civil Procedure, 1908 in respect document as mentioned in the present Application at Exhibit – A hereinabove in Appeal No.156 of 2016.

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(b) In the alternative remand the above matter to the Trial Court directing the Trial Court to allow the Appellant to amend the written Statement filed by the appellant.

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(c) And further allow the Appellant/Defendant to lead Additional Evidence in view of the amendment.”

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(iii)In the said application filed on 7th November 2017 most
of the contentions raised in the present application, particularly
with respect to the decree passed in respect of Room No.2A on
2nd May 2017 and decree passed in respect of Room No.2B on
31st July 2014 were sought to be brought on record under Order
XLI Rule 27 of CPC.

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(iv)The learned Appellate Court of Small Causes Court,
Mumbai, by order dated 14th August 2018 passed below Exh.22
in Appeal No.156 of 2016 directed that the said application
bearing Exh.22 be heard and decided with main appeal in
accordance with law and further directed that the parties shall
be at liberty to make necessary submissions regarding said
application bearing Exh.22 at the time of final hearing in
accordance with law.

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(v)Thereafter, the present application bearing Exh.32 of
2016 was filed in said Appeal No.156 of 2016 on 22nd November
2021 seeking to amend the written statement at the appellate
stage. As set out earlier most of the facts sought to be brought
on record are mentioned in application dated 7th November
2017.

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5.It is the contention of Mr. Vasudeo, learned counsel appearing
for the Respondent No.1 that this application was taken out when the
Appeal was scheduled to be heard finally. It is significant to note that
although the amendment application seeking amendment in the
written statement was filed on 22nd November 2021, the amendment,
inter-alia,is regarding decree passed in respect of the said Room
No.2A, which was passed on 2nd May 2017 and decree passed in
respect of Room No.2B which was passed on 31st July 2014.

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6.It is admitted position that as far as said decree passed with
respect to Room No.2B is concerned, this Court has admitted Civil
Revision Application No.157 of 2021 along with Civil Revision
Application No.158 of 2021 and granted inter-alia, stay of eviction
decree.

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7.Mr. Vasudeo, learned counsel fairly admits that as far as decree
regarding Room No.2-B which is only of 100 sq.ft. is concerned, the
same has been executed and Respondent No.3 has received
possession of the same.

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8.In any case, what is significant to note is that when the earlier
application under Order XLI Rule 27 of CPC was filed on 7th
November 2017, the present Petitioner was aware about the said
subsequent events and the same has been mentioned specifically in
the said application bearing Exh.22. The present application seeking

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amendment (Exh.32) was filed on 22nd November 2021 i.e. after
about 4 years. The suit has been filed in 2010. Therefore, proviso to
Order VI Rule 17 will be applicable to the present case. The said
proviso specifies 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 party could not have
raised matter before commencement of trial. Therefore, it is settled
legal position that unless the party shows due diligence, the Court
will not be having jurisdiction to grant the amendment application
after trial has commenced.

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9.In the present case, the application was filed at the appellate
stage seeking amendment in the written statement inter-alia,
regarding the events which have taken place in 2014-2017 and most
of the events were sought to be brought on record by filing
application under Order XLI Rule 27 Civil Procedure Code which was
filed on 7th November 2017.

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10.Thus, it is clear that the jurisdictional facts regarding due
diligence which are necessary to be pleaded in the application
seeking amendment are absent in the present case and in any case,
this is not a case where due diligence is shown by the Petitioner. In
the case of Vidyabai & Ors. v. Padmalatha & Ors.1, it has been held

1 (2009) 2 SCC 409

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that unless the jurisdictional fact, as envisaged therein, is found to be
existing, the Court will have no jurisdiction at all to allow the
amendment of the plaint.

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11.As far as the contention that the Respondent No.2 i.e. the
defendant no.2 has passed away on 1st October 2020 and therefore,
the requirement of the plaintiff has come to an end, there is no
substance in the said contention and therefore, in the amendment to
that effect. By no stretch of imagination, it can be held that as the
defendant no.2 has passed away the bonafide requirement of the
plaintiff has come to an end. The plaintiff, defendant no.2 and 3 have
acquired the suit property and therefore, they are the co-owners. The
plaintiff has in the plaint, inter-alia, stated that the plaintiff requires
the suit premises for her bonafide user for herself, her husband, her
son and her daughter.

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12.Although it is true that at the time of considering the
amendment application, the merits of the amendment are not
required to be seen, however, this is a case where amendment
application is filed just to prolong the hearing of the Appeal and
therefore, the said merits are considered only from the point of view
of examining the bonafides of the Petitioner in filing amendment
application.

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13. This is not a case where interference is required in writ

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jurisdiction of this court under Article 227 of the Constitution of
India. Therefore, Writ Petition is dismissed.

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14.As it is the contention of the learned Advocate appearing for
the Respondent No.1 that the Exh.32 application in Appeal No.156 of
2016 was filed when the Appeal was scheduled to be heard finally,
the learned Appellate Court of Small Causes Courts, Mumbai is
requested to dispose of the Appeal No.156 of 2016 expeditiously.

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15.It is clarified that all the contentions of both the parties are
expressly kept open and the observations made in this order are
made only from the point of view of examining the legality and
validity of the impugned order.

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(MADHAV J. JAMDAR, J.)

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Pushpa Kishanlal Jain v. Delna Cyurus Irani and Anr.

Case brief

What is this about?

What the court decided

Pushpa Kishanlal Jain v. Delna Cyurus Irani and Anr.

Case brief

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