G M ROSHAN Vs. GANGADHAR CHATURBHUJ

JUDGEMENT

(1.) The short question that arises in this special civil application is whether the two courts below were in error in law in not granting the petitioners application for amending the plaint.

(2.) The facts in so far as they are material may be stated thus: The dispute relates to Flat No. 19 on the 4th floor, Ganga Vihar, 55, N. Subhash Road, Marine Drive. Respondent No. 1 was the landlord of both Flat Nos. 16 and 19 in the said premises and he had let out the two flats to respondent No. 2. According to the petitioner he was put in possession of both the flats by respondent No. 2 in the year 1968, and since then he is lawful possession as a sub-tenant thereof with the consent of the respondent No. 1-landlord. According to him, in the year 1969, he gave back possession of flat No. 16 to respondent No. 2 and continued to be in possession and occupation of falt No. 19 at the rent of Rs. 800/- p.m. On October 11, 1971, the respondent No. 1 filed R.A.E. Suit No. 865/4960 of 1971 against the respondent No. 2 for possession of both the said flats together with the garage on certain grounds. On December 20, 1971, respondents 1 and 2 filed consent terms under which the respondent No. 1 withdrew his suit relating to flat No. 16 and the garage, and as regards flat No. 19 he agreed to vacate the premises and hand them over to respondent No. 1. Pursuant to the consent terms, a decree for possession in favour of respondent No. 1 in respect of flat No. 19 was passed by the Court of Small Causes. Thereafter on January 18, 1971, respondent No. 1 sought to execute the decree for possession. However, the execution was then obstructed by the petitioners wife. The respondent No. 1 therefore, took out an obstructionist notice against the petitioner. This obstructionist notice was made absolute on January 18, 1973 by the executing Court. Aggrieved by this decision, on September 24, 1973, the petitioner filed Special Civil Application No. 2340 of 1973 in the High Court. During the pendency of the Special Civil Application, on December 21, 1973, the petitioner filed a declaratory suit, which has given rise to this petition, challenging the decree passed in favour of respondent No. 1 on the ground that the same was obtained by respondents 1 and 2 collusively with a view to defraud the petitioner of his legitimate rights in the flat. On November 21, 1975, the special civil application preferred by the petitioner was rejected. However, it was ordered that the execution of the decree should be stayed till the final disposal of the suit. It was also directed that the suit should be heard and disposed of by the trial Court before March 31, 1976. On February 16, 1976, issues were framed by the trial Court. Thereafter on February 19, 1976, the petitioner filed an application for amendment of the plaint. In substance, the amendment was to the effect that the petitioner was a protected licensee or a deemed tenant within the meaning of the Maharashtra Amendment Act No. 17 of 1973 to the Bombay Rent Act and was, therefore, entitled to protection from eviction. This application for amendment was opposed by respondent No. 1. On February 27, 1976, the trial Court rejected the application mainly on the ground that the amendment seeks to introduce a case which is inconsistent with the one already pleaded, and such an amendment cannot be granted. The petitioner preferred a Revisional Application before the Appellant Bench of the Court of Small causes challenging the order of rejection of the application for amendment passed by the trial Court. This Revisional Application was, however, rejected on March 26, 1976. The view taken by the Appellant Bench of the Court of Small Causes was that the amendment could not be allowed as the case made out by the amendment is totally inconsistent with the case as originally pleaded in the plaint, and secondly, the application for amendment was not bona fide. Aggrieved by this decision, the petitioner has preferred this special civil application under Article No. 227 of the Constitution.

(3.) The first question for consideration is whether the courts below were justified in holding that the case sought to be made out by the petitioner by the amendment is inconsistent with the original pleading. On a perusal of the plaint, it would, undoubtedly, appear that the petitioner has contended that he is a lawful tenant, or lawful sub-tenant in respect of flat No. 19, and that he is protected from eviction under the provisions of the Rent Act. The plaint also shows that the petitioner has challenged the consent decree as collusive and, therefore, not binding on him. In paragraph 8 of the plaint it is stated---