Research › Search › Judgment

Bombay High Court · body

2021 DIGILAW 650 (BOM)

Noor Kabirdin Meghani v. Sanjeev Manuel Dsouz

2021-03-22

SANDEEP K.SHINDE

body2021
JUDGMENT Sandeep K Shinde, J. - Rule. Rule made returnable forthwith. With consent of the parties, matter is taken up for final hearing at the stage of admission itself. 2. Petitioners, are defendants in Eviction Suit No.272/5824 of 2004, instituted by the respondent no.1. Pending suit, the learned Trial Court granted leave to amend the plaint, vide order dated 2nd December, 2019. Felt aggrieved, petitioners had preferred Miscellaneous Civil Appeal. The Appellate Bench dismissed, the appeal on the ground that appeal was not maintainable-in- law. Thus, aggrieved defendants have approached this Court under Article 227 of the Constitution of India. 3. Back-ground facts as approached by the petitioners are as under: Sanjay M. D'Souza (respondent/plaintiff) through his constituted attorney, Ms. Maria M. D'Souza (mother) let out suit premises to the petitioners/defendants under writing dated 28th May, 1994. In 2004, respondent instituted the eviction suit for breach of clause (v) of the writing dated 28th May, 1994 for sub-letting the possession of the suit premises to a third party. In paragraph 4 of the plaint, plaintiff averred that in 2002, defendants had unlawfully and without plaintiff’s consent, inducted a third party in the suit premises, taking advantage of absence of plaintiff from India. Thus, alleged, defendants have committed breach of the terms and conditions of tenancy and hence, plaintiff is entitled to recover possession under Section 16(1)(e) of the Maharashtra Rent Control Act, 1999. Yet another ground on which eviction is sought is that defendants, without plaintiff's consent, in writing, erected on the suit premises a permanent structure. Besides, also alleged that premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. Written Statement: 4. Defendants resisted the suit. In paragraph 7 of the Written Statement, it is pleaded that defendants came in contact with constituted attorney of the plaintiff, through previous tenants, and during the course of the meeting, constituted attorney was clearly told that defendants were not going to occupy suit premises themselves as, at that time, they had their own suitable residential accommodation, where they have been living and that they were interested in taking the suit premises by way of investment only and they will be letting out suit premises to different licensees on leave and licence basis. It is defendants' case that constituted attorney of the plaintiff had agreed to the said term but told that, in order that Bombay Municipal Corporation do not increase rate-able value of the property on account of letting, defendants would be required to record usual terms of the tenancy. It is further pleaded that constituted attorney told defendants that, as and when premises would be given on leave and licence basis, she will charge 1/3rd of the licence fees as extra amount for her consent and she will witness all the leave and licence agreements by way of consent for giving it to different parties. Defendants would contend that the said agreements have also been acted upon. It is, therefore, contended that plaintiff is estopped from contending otherwise recording the rights of the defendants to give suit premises on leave and licence basis. Defendants would also contend that when suit premises were given on leave and licence basis, agreements were prepared by the advocate for the plaintiff and in all the agreements, she had signed as witness and charged extra amount for the same. Admittedly, defendants did not produce leave and licence agreements, at the appropriate stage but craved leave to refer and rely, on leave and licence agreements. Defendants, therefore, denied that they had unlawfully sub-let the premises as alleged and further denied plaintiff's entitlement to recover possession of the suit premises on this ground. In paragraphs 9 and 10 of the Written Statement, defendants contended that they were always ready and willing to pay extra amount as and when premises are given on leave and licence basis and all these years and in fact, since inception of tenancy, defendants with the knowledge and consent, have been giving suit premises on leave and licence basis to different persons. Indisputably, plaintiff/respondent no.1 has appointed his mother as constituted attorney and terms of the tenancy of the suit premises were settled by his constituted attorney because, the plaintiff is ordinarily not residing in India. 5. Be that as it may, on 7th August, 2015, plaintiff fled an affidavit in lieu of evidence. He was cross-examined by the defendants on 18th December, 2018; wherein he admitted that in 1994 when subject tenancy was created, he was not in India. This admission fortifies the fact that plaintiff's constituted attorney settled terms of the tenancy. 5. Be that as it may, on 7th August, 2015, plaintiff fled an affidavit in lieu of evidence. He was cross-examined by the defendants on 18th December, 2018; wherein he admitted that in 1994 when subject tenancy was created, he was not in India. This admission fortifies the fact that plaintiff's constituted attorney settled terms of the tenancy. He would also admit that most of the times, he is not residing in India and since inception of tenancy, his mother was managing the suit property and was also issuing rent receipts. While, under the cross-examination, plaintiff was confronted with originals of leave and licence agreements dated 23rd May, 1997, 28th June, 1998, 23rd May, 2000 , 23rd May, 1999 and 23rd June, 2001. Plaintiff admitted these leave and licence agreements, which bore her mother's signature as witness. Hoe was also confronted with rent receipts and, agreement for hire of furniture, dated 23rd May, 1997. Plaintiff admitted signature of her mother on all these documents, which were marked Exhibits 49 to 53 and 54 to 56. 6. Thus, prima-facie, it is to be held that suit property was sub-let by the defendants with the knowledge and consent of the plaintiff's constituted attorney. 7. Soon after his cross-examination, on 8th January, 2019, plaintiff fled an application purportedly under Order 6 Rule 17 of the Code of Civil Procedure, 1908 seeking for leave to amend the plaint. Schedule of amendments reads as under: "3A. During the cross-examination of Plaintiff on 18th December, 2018, the advocate for Defendants produced certain rent receipts, leave and licence agreements and Agreements for the hire of furniture, copies whereof were not annexed to the written statement. The rent receipts were marked as Exhibits 46 to 48, Leave and Licence agreements were marked as Exhibits 49 to 53 and Agreements for furniture were marked as Exhibits 54 to 56. 3B. The Plaintiff was not residing in India and his mother was looking after the suit premises till year 2004. It was only at the time of cross examination dated 18th December, 2018, the Plaintiff was shown the said leave and licence agreements and agreements for furniture wherein his mother appears to have signed as witness. 3B. The Plaintiff was not residing in India and his mother was looking after the suit premises till year 2004. It was only at the time of cross examination dated 18th December, 2018, the Plaintiff was shown the said leave and licence agreements and agreements for furniture wherein his mother appears to have signed as witness. When the Plaintiff enquired with his mother about the aforesaid leave and licence agreements and agreements for furniture, the Plaintiff's mother informed that she did not remember as to when she may have signed the aforesaid documents. The Defendants had good relations with Plaintiff and his family members. The Plaintiff was out of India at the time when the aforesaid documents were executed. The Defendants could have misrepresented to the Plaintiff's mother that certain signatures were required on documents without explaining her contents of the said documents. Believing the words of the Defendants the Plaintiff's mother could have signed the aforesaid documents as witness. The documents from Exhibit 49 to Exhibit 53 are all unregistered leave and license agreements. 3C. The said leave and license agreements and agreements for furniture, clearly show that the Defendants have been sub-letting the suit premises or giving the suit premises on license by executing leave and license agreement and have been profiteering from the suit premises. The aforesaid facts and documents clearly show that the Defendants had violated clause 5(vi) of the said writing dated 20 th May, 1994, which is not disputed by the Defendants in their written statement. The Plaintiff is therefore entitled to recover possession of the suit premises under Section 16(1)(m) of the Maharashtra Rent Control Act, 1999." . In the body of the application, he pleaded ignorance of the leave and licence agreements. In application, he would say, that these documents were executed when he was out of India and possibly that the defendants would have misrepresented his mother for signing the documents without explaining the contents of it. In paragraph 6 of the application, it is averred that after going through the aforesaid leave and licence agreements and agreement for furniture, he perceived, that the defendants were sub-letting the suit premises and were profiteering therefrom. On the back-drop of these facts plaintiff now, seeks to recover possession of the suit premises on the ground enumerated under Section 16(1) (m) of the Maharashtra Rent Control Act, 1999. On the back-drop of these facts plaintiff now, seeks to recover possession of the suit premises on the ground enumerated under Section 16(1) (m) of the Maharashtra Rent Control Act, 1999. Clause (m) reads as follows: "(m) that the rent charged by the tenant for the premises or any part thereof which are sub-let is in excess of the standard rent and permitted increases in respect of such premises or part or that the tenant has received any fine, premium, other like sum of consideration in respect of such premises or part; or " 8. The learned Trial Court granted the application on the ground, that the Court is empowered, at any stage of proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just and the proposed amendment being in nature of subsequent event, it was necessary for purpose of determining real question of controversy between the parties. For these two reasons, application was allowed and permitted plaintiff to amend the plaint as per the schedule. 9. Aggrieved defendants, approached the appellate Bench. However, the Bench declined to entertain the appeal vide order dated 24th January, 2020. DISCUSSION & REASONS: 10. Proviso, to Order 6 Rule 17 mandates that no application for amendment shall be allowed after commencement of trial, unless Court comes to conclusion that in spite of due diligence, the parties would not have raised the matter before the commencement of the trial. Trial in the civil suit commences from the date of fling of affidavits in lieu of examination-in-chief of the witnesses and, therefore, proviso to Order 6 Rule 17 of the Code comes into play only after fling of such of the affidavit in lieu of examination-in-chief of the witnesses . In the back-drop of the facts of the case, it cannot be said that plaintiff was unaware of the fact that the suit premises were sub-let by the defendants. In fact, defendants in their Written Statement categorically stated that they were sub-letting suit premises to different parties with the consent and knowledge of the plaintiff's constituted attorney. Written statement was fled on 29th November, 2004; whereas the application seeking leave to amend the plaint was fled in January, 2019. In fact, defendants in their Written Statement categorically stated that they were sub-letting suit premises to different parties with the consent and knowledge of the plaintiff's constituted attorney. Written statement was fled on 29th November, 2004; whereas the application seeking leave to amend the plaint was fled in January, 2019. As such, the averments of the plaintiff in the application, to amend the plaint, that after his cross-examination when he enquired with the mother about leave and licence agreements with which he was confronted to, his mother informed him that she did not remember as and when she had signed aforesaid documents, was clearly after thought. Averments in paragraph 5 of the application seeking leave to amend the plaint are to be rejected on the face of it because in the Written Statement, defendants had disclosed that they had sub-let the premises to different parties under the leave and licence agreements with consent of constituted attorney of the plaintiff. Under these circumstances, the plaintiff's assertion that he was unaware of the fact of sub-letting and he perceived it, during his cross-examination and, therefore, it constitutes subsequent events, is obviously incorrect and to be rejected on the face of it. No doubt, that where suit for ejectment of tenancy is fled on certain grounds, subsequent addition of fresh ground in the plaint does not change the nature of the suit and, therefore, amendment to add such new grounds is permissible. In the case of Smt. Abnash Kaur v. Dr. Avinash Nayyar, (1975) AIR Delhi 46 , Full Bench of the Delhi High Court has held that if a new ground for recovery of possession under Rent Control Legislation arises after the fling of the petition then that can also be combined with previously existing grounds. Landlord can either file new suit on these grounds or he may apply for amendment in existing eviction petitions and urged this ground also. It is said that in practice, it is undesirable for the landlord to pursue two different petitions for eviction on different grounds and that he should be allowed to amend his suit to cover new ground also. In the case in hand, the plaintiff had fled suit also on the ground of sub-letting under Section 16(1)(e) of the Maharashtra Rent Control Act. What is now sought to be added is a ground under Section 16(1)(m). In the case in hand, the plaintiff had fled suit also on the ground of sub-letting under Section 16(1)(e) of the Maharashtra Rent Control Act. What is now sought to be added is a ground under Section 16(1)(m). The averments in the application seeking amendment to the plaint is lacking the details of the rent allegedly charged by the defendant was in excess of standard rent and permitted increases for the premises sub-let by him. In fact, the ground for eviction contemplated under Clause (m) of Section 16(1) could be said to be available to the plaintiff when the suit was instituted and, therefore, it is neither subsequent event nor a new ground for recovery of possession that arose after fling of the suit. 11. In so far as subsequent events are concerned, indisputably, the Court has power to take note of such subsequent events subject to conditions being satisfied as held and laid down by the Apex Court in the case of Ramkumar Barnwal v. Ram Lakhan, (2007) 5 SCC 660 , conditions thus, (i) that the relief, as claimed originally, has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of the procedural law so that opposite party is not taken by the surprise. . The facts of the case do not satisfy either of these conditions. Herein the subsequent event has neither rendered the original relief inappropriate nor subsequent event would shorten the litigation nor it can be said that it was brought to the notice of the Court promptly. In-fact, plaintiff's assertion, that of sub-letting and profiteering is subsequent event, was a futile attempt in the back-drop of the averments in the Written Statement by the petitioners. Admittedly, the application seeking for amendment to the plaint was moved after commencement of the trial. The facts of the case and the evidence on record does not suggest that in spite of due diligence that the plaintiff could not have raised or sought amendment before commencement of the trial. 12. Admittedly, the application seeking for amendment to the plaint was moved after commencement of the trial. The facts of the case and the evidence on record does not suggest that in spite of due diligence that the plaintiff could not have raised or sought amendment before commencement of the trial. 12. In consideration of the facts of the case and for the reasons stated here-in-above, the impugned order dated 2nd December, 2019 passed below Exhibit 58 in R.A.E. Suit No.272/584 of 2004 by the Court of Small Causes, Bombay is quashed and set aside. Effect if at all given to the amendment be struck of. The petition is allowed in aforesaid terms and rule is discharged.