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2021 DIGILAW 306 (BOM)

Prakash H Dabholkar v. Crom Clinical Resort

2021-02-10

DAMA SESHADRI NAIDU

body2021
JUDGMENT Dama Seshadri Naidu, J. - The petitioner owns the property, and the respondent lives in it as a licensee. The deed of licence was signed on 16.5.2019 for five years. It appears when they contracted, the building was semi-finished; the licensee was required to complete it. Later, the parties disputed. In fact, this dispute led to criminal complaints against each other and, even, the invocation of section 107 of Cr.P.C., by the authorities concerned to prevent a breach of peace. 2. In the above background, the licensee sued the owner in June 2019. In that suit, it applied for an interim injunction, too. 3. Before the trial Court could take up the interim injunction application, the licensor filed a written statement and a counterclaim. It was on 17.7.2019. The next month, the licencee filed a written statement in the licensor's counterclaim. 4. On 2.3.2020, the licensor filed two applications before the trial Court: one for bringing on record additional documentary evidence and the other to amend the written statement in tune with that additional evidence. On the same day, the trial Court dismissed both the applications. Aggrieved, the licensor has come to this Court, invoking Article 227 of the Constitution of India. 5. Shri B. Sardessai, the learned counsel for the licensor, has submitted that the document, dated 29.11.2019, now the licensor seeks to place on the record before the trial Court, clearly establishes that the licencee has not possessed the property. According to him, that is a vital document because the injunction concerns possession. Besides, Shri Sardessai has also submitted that the trial Court has erroneously noted in its impugned order that the licensor applied for additional evidence when the arguments in the temporary injunction application were in progress. According to him, by then, the arguments had not begun. So, he urges this Court to set aside the impugned order and allow the licensor to place on record the additional evidence and to amend the pleadings consequently. 6. On the other hand, Shri H. V. S. Bhatkuly, the learned counsel for the licensee, submits that the licensee initially did not press for the interim injunction as he had been in peaceful possession of the property. When the licensor tried to disturb the licensee, he urged the trial Court to consider the interim application for the injunction. 6. On the other hand, Shri H. V. S. Bhatkuly, the learned counsel for the licensee, submits that the licensee initially did not press for the interim injunction as he had been in peaceful possession of the property. When the licensor tried to disturb the licensee, he urged the trial Court to consider the interim application for the injunction. According to him, the trial Court has rightly noted in its order that the licensor came up with the application during the arguments in the interlocutory application for the injunction. At any rate, Shri Bhatkully contends that the document the licensor wanted to bring on record is post litem motam document. 7. To illustrate this aspect, Shri Bhatkuly submits that the suit was filed in June 2019, but the document was allegedly executed on 29.11.2019 -after the suit was filed. Besides that, the licensee is not a party to that document. So, according to him, the document-at least, to the extent of the trial Court's deciding interlocutory application for injunction-has no relevance. Thus, he has urged this Court to dismiss the writ petition. 8. Heard Shri B. Sardessai, the learned counsel for the petitioner, and Shri H. Bhatkuly, the learned counsel for the respondent. 9. Indeed, the licensee filed the suit in June 2019. In that suit, it had applied for an interim injunction. The outcome of that application would depend on whether licensee had been in possession of the property on the date when the suit was filed or on the date when the interim application was taken up for consideration. 10. That said, I hold that a party to the proceedings may place on record the later developments by amending the pleadings. By the same reckoning, that party may also place on record additional evidence, too. But it depends on certain contingencies. One of such contingencies is when the party had not known about that evidence when he filed his pleadings before the Court. The other instance is when the evidence emerged later-that is a subsequent development. That said, the evidence sought to be produced must be relevant to the issue before the court. 11. Here, the trial Court, first, took up the interim-injunction application. Of course, the licensor disputed that the trial Court's observation that he had applied for amendment and additional evidence during the arguments. Yet a judicial observation has its sanctity. That said, the evidence sought to be produced must be relevant to the issue before the court. 11. Here, the trial Court, first, took up the interim-injunction application. Of course, the licensor disputed that the trial Court's observation that he had applied for amendment and additional evidence during the arguments. Yet a judicial observation has its sanctity. At this stage, at least prima facie, I must take that the applications were indeed filed during the arguments. But that does not matter much if the interest of justice demands. 12. Here the licensor wants to bring on record what is said to be a leave and licence agreement, dated 29.11.2019, he entered with a third party. According to him, through that document, he delivered possession to that third-party licensee. In other words, that document would effectually show that the respondent had no longer possessed the property. In this context, the licensor argues that even before the suit could be filed, the licensee peacefully handed over the possession to the licensor. I do not intend to visit that controversy as it is beyond the scope of this writ petition. 13. The fact remains that document, dated 29.11.2019, is a post litem motam document. And to that document, the licensee is not a party. The recitals in that document hardly bind it. Therefore, the trial Court has rightly held that for it to decide the interim application for the injunction, that document assumes no importance. 14. To be fair to the trial Court it has, in fact, observed that the licensor's application for additional evidence and amendment would be considered at an appropriate stage. Under these circumstances, I find no reason to interfere with the impugned order. So I dismiss the Writ Petition, with no order on costs.