MOHAMMEDYUSUF ABUBAKER RANGEENWALA Vs. JAMMUMAL SHYAMDAS

JUDGEMENT

(1.) GRANT of application for amendment of written statement in HRP Suit No. 5532 of 2003 instituted in the Ahmedabad Small Cause Court by an order dated 7th August, 2009, has aggrieved the petitioner-plaintiff, and thus, invokes jurisdiction under Article 227 of the Constitution of India.

(2.) HRP suit came to be instituted, inter alia, on the ground of personal requirements of the demised property by the landlord- plaintiff-petitioner. At the fag end of the trial i.e. after the witnesses have been examined by both the sides, aforesaid application came to be moved seeking amendment to the effect that the petitioner, having purchased the property in 1991 from his father and at relevant point of time, the respondent being a tenant in occupancy, the ground that the demise property was required by the petitioner for personal use is not available to the petitioner. Another ground which is sought to be added by the amendment, is that the heirs of Jammumal Shyamdas, the first defendant in the suit, having not been joined, namely Dilipbhai Govindlal, Kamlaben Govindlal, Sureshkumar Govindlal and Pitamberdas Jammumal, being statutory tenants under Section 5(11)(c) of Bombay Rent Act the suit is barred by non-joinder/mis- joinder of the parties.

(3.) LEARNED counsel for the petitioner has pressed into service proviso to Order VI Rule 17 of CPC to justify the contention that in absence of explanation of due diligence as required under the proviso, the application for amendment of the written statement was not maintainable. Reliance was also placed on Vidyabai and others Vs. Padmalatha and another [(2009)2 SC 409] to contend that the proviso is mandatory. It is contended that, in fact, the parties have been properly joined, and in view of undisputed fact that, Dilipbhai is surviving grand son of Jammumal, whose son Govindlal, had expired long back, he has been properly joined as heir of Jammumal. It is contended that findings of the trial Court that Govindlal has not been joined as a heir of deceased Jammumal is contrary to record in as much as the factum of death of Govindlal was on record of the trial Court, which has been overlooked.