NATWARLAL SHAMJI GADA Vs. VINAY RAGHUNATH DESHMUKH

JUDGEMENT

(1.) Petitioner challenges order dtd. 5/4/2024 passed by the Appellate Bench of the Small Causes Court allowing application at Exhibit-38 filed by Plaintiff and permitting him to carry out amendment in the plaint. The Appellate Bench has referred the case to the Trial Court for inviting its finding on the issue of bonafide requirement and hardship after amendment of the Plaint. PetitionerDefendant No.1 is thus aggrieved by the Appellate Court's order permitting amendment of Plaint at appellate stage and remanding the suit for inviting findings of the Trial Court on the issue of bonafide requirement and hardship.

(2.) Respondent No.1-original Plaintiff had instituted R.A.E.& R. Suit No.102/152 of 2006 in the Small Causes Court at Mumbai seeking recovery of possession of the suit premises comprising of Shop No.2, admeasuring 188 sq.ft, ground floor, Laxman Zulla, 50 Ranade Road, Dadar (West), Mumbai-400028 (Suit Premises). Eviction of Defendants was sought on the grounds of default in payment of rent, erection of permanent structure and reasonable and bonafide requirement of the Plaintiff. It appears that additional issue relating to subletting was also framed by the Trial Court. The Trial Court proceeded to dismiss the Suit vide decree dtd. 29/11/2016 by rejecting the grounds of eviction raised by Plaintiff. Plaintiff filed Appeal No. 299 of 2017 before the Appellate Bench of the Small Causes Court. It appears that during pendency of the Appeal, the Original Plaintiff passed away and his son, Vinay Raghunath Deshmukh continued prosecuting the Appeal. During pendency of the Appeal, he filed application at Exhibit-38 seeking amendment of the plaint and remand of the suit for leading evidence on the additional events in support of ground of his bonafide requirement. He sought to add averments relating to bonafide requirements for operating his own consultancy office, his wife's office as practicing advocate and his son's consultancy and medical practice in the suit premises. Plaintiff also sought to add averments relating to parting with possession of the suit premises in favour of Ms. Sathawalekar.

(3.) Mr. Thorat, the learned counsel appearing for the Petitioner would submit that the Appellate Bench has erroneously exercised jurisdiction under Order 41 Rule 25 of the Code of Civil Procedure, 1908 (the Code) by permitting Plaintiff to amend the plaint and by remitting the matter for inviting fresh findings on the issue of bonafide requirement. He would submit that power of remand can be exercised by the Appellate Court under Order 41 Rule 25 of the Code only when the Trial Court has omitted to frame or try any issue or to determine any question of fact. That in the present case, the Trial Court had framed the issue of bonafide requirement, permitted parties to lead evidence and has thereafter decided the said issue against the Plaintiff. That therefore the power of remand under Order 41 Rule 25 could not have been exercised in the present case.