SHALINI VYANKATESH PUNTAMBEKAR Vs. JAYAPRAKASH R AGARWAL

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the orders passed by the IVth Additional District Judge, Pune dated 16-6-1995 in Civil Revision Application No. 110 of 1994 and of the Small Causes Court Judge, Pune dated 8-8-1994 in Regular Civil Suit No. 1007 of 1989.

(2.) THE petitioner-original plaintiff is the landlord in respect of premises consisting of house bearing City Survey No. 380 of Shaniwar Peth, Pune. The petitioner instituted suit against respondent-tenant for possession of the suit premises before the Small Causes Court, Pune being Civil Suit No. 1007 of 1989. The main ground pressed by the petitioner for eviction is that the respondent-tenant has acquired suitable residence and therefore was liable to be evicted within the meaning of section 13 (1) (1) of the Bombay Rent Act. The petitioners case proceeded on the premise that the suit premises were let out to the respondent exclusively for residence purpose but the respondent has changed the user and started using it for business purpose. In the circumstances besides claiming eviction under section 13 (1) (1) the petitioner also claimed possession on the ground under section 13 (1) (k) read with 13 (1) (a) i. e. non-user for more than six months preceding the institution of the suit for the purpose for which the premises were let out. This suit was resisted by the respondent by filing written statement. In the written statement the specific case made out by the respondent is that the premises were let out for business purpose and the same were being used for that purpose and as such there was no breach committed by the respondent. On the basis of the abovesaid pleadings issues were framed and the parties went for trial. The petitioner entered into witness box and deposed in support of the case made out in the plaint. The examination in chief of the petitioner would clearly indicate that the petitioner asserted that the suit premises were let out for residential purpose and for no other purpose. It is further stated that the suit premises were let out to the respondent for residential purpose almost after eight years after the date on which the shop premises in the same building were let out to the respondent. The petitioner also deposed that the respondent Jayprakash Agarwal had signed on the back side of the counter foil of the rent receipts acknowledging that the premises were let out for residential purpose. The petitioner also deposed that other three tenements in the same building were also let out for residential purpose. The petitioner while adducing evidence has placed on record voters list as on 1-1-1984 to show that the defendant and his family members were staying in the suit premises. He further stated that the defendant and his family members continued to stay in the suit premises till 1985 but subsequently in the year 1986 the defendants son acquired sufficient accommodation in 383, Shaniwar Peth and started living separately in that accommodation; and since then the respondent shifted his household articles from the suit premises and started using the suit premises for business purpose. It appears from the record that the petitioner had entered the witness box on 22-2-1994 on which date neither the respondent nor his Advocate remained present for cross-examination. Instead of cross-examining the petitioner, the respondent took out an application which is the subject-matter of the present writ petition being Exhibit 75 praying for amendment to the written statement. The trial Court by the impugned order dated 8-8-1994 allowed the said amendment. I shall make reference to the nature of amendment a little later. Against the said order the petitioner took up the matter before the District Judge by way of Civil Revision Application No. 110 of 1994 which was eventually dismissed by the impugned order dated 16-6-1995 mainly on the ground that the revision application was not maintainable before the District Court against the procedural order. In the circumstances the petitioner has taken except to both the aforesaid orders which in effect allowed the amendment of the written statement as prayed for by the respondent in the present petition.

(3.) THE nature of the amendment sought by the respondent in the written statement in substance is that the respondent wants to set up plea that the suit premises were originally let out to the respondent for composite purpose of business and residence and not exclusively for business as already contended by him in the written statement. The trial Court was pleased to allow the said amendment. Learned Counsel for the petitioner assails the correctness of the said order and the approach adopted by the Court below in allowing the said amendment. According to the petitioner the courts below have clearly exceeded the jurisdiction in allowing the said amendment, for it amounts permitting the respondent to take inconsistent pleas and more particularly when the said application was an afterthought and belated one especially being moved after the petitioner had already stepped into the witness box. It is also submitted that the amendment was intended to destroy the case made out by the petitioner in the pleadings as well as during the examination in chief and such amendment ought not to have been permitted as it would cause serious miscarriage of justice. According to the petitioner it is not in dispute that the main ground on which the petitioner had approached the rent Court was that the respondent had acquired suitable residence. It cannot be disputed that the said ground can be pressed only when the suit premises are originally let out for residence and the tenant in due course of time acquires suitable residence. If the tenant acquires suitable premises for business, in such a situation, the said ground would be of no avail and cannot be pressed in law. Having regard to this position it is contended that the respondent has moved the present application for amendment. The learned Counsel for the petitioner has relied upon the decisions of the Apex Court in the cases of (Jagan Nath v. Chander Bhan and others), 1988 (3) S. C. C. 57, (Shrimoni Gurdwara Committee v. Jaswant Sinah), J. T. 1996 (8) S. C. 292, (Heeralal v. Kalyan Mal and others), 1998 (1) S. C. C. 278 and that of the High Court of Assam in the case of (Mt. Subashini Majumdar and another v. Krishna Prasad Mahatoo and others), A. I. R. 1956 Assam 79 and of this Court in the case of (Balu Appaji Sangaonkar v. Rangrao Dattoba Palkar), 2001 (2) Mh. L. J. 709. On the other hand the learned Counsel for the respondent submits that the proposed amendment was only explanatory in nature and did not amount to taking any inconsistent pleas. He submits that there is no dispute that the suit was mainly filed on the ground that tenant having acquired suitable residence, therefore, whether the respondents claim that the premises were let out for business or for composite purpose would not make any difference as in both situations the ground under section 13 (1) (1) will not be available. The learned Counsel also adopts the reasons indicated by the trial Court in allowing the amendment. He submits that no prejudice will be caused to the petitioner if amendment was allowed as ordered by the trial Court. He has placed reliance on the decisions of the Apex Court in the cases of (Arundhati Mishra (Smt.) v. Sri Ram Charitra Pandey), 1994 (2) S. C. C. 29 and (Akshaya Restaurant v. P. Anjanappa and another), 1995 Supp. (2) S. C. C. 303.