JAINUDDIN SHEKHUBHAI MOMIN Vs. SHANKARRAO VISHNU THIGALE

JUDGEMENT

(1.) IT is said that justice is a constant and perpetual wish to give everyone his due. In the present matter, the landlord of his house, the suit premises, had filed a regular civil suit for evicting the petitioner abovenamed, the tenant, some time in the year 1979, and he died in the year 1991 without getting his due desired by him. His legal heirs were impleaded in the above petition somewhere in the year 1993. In the present C. R. A. , the learned Counsel for the legal heirs, Shri Vaze, has been vocal enough to express his anxiety whether he would get their fathers due at least in their life time. His anxiety is justified. Even as a result of the above application, the parties will not see the end of the litigation.

(2.) THE facts, in brief, are that the deceased landlord had issued a notice dated 25-7-1979 calling upon the petitioner to vacate the suit premises and hand it over to him under section 106 of the Transfer of Property Act. Since the tenant did not comply with the said notice, a suit for eviction was filed by the landlord alleging various grounds for termination of tenancy. The Civil Judge, Junior Division, Rajgurunagar, decreed the suit by his judgement and order dated 23rd January 1986. The tenant was aggrieved by the said judgement and order and, therefore, he filed a civil appeal in the District Court, Pune, which is still pending for final disposal. During the pendency of the aforesaid appeal, the tenant filed an application for amendment of his written statement on the ground that inadvertantly he had not "mentioned specifically that the month of tenancy begins from 17th of the English calendar and not from the 1st. " The petitioner tenant had specifically averred that though the petitioner had contended that the notice of termination was not valid, the specific contention that the month of tenancy begins from 17th of the English Calendar since the original tenancy was from 17th October 1968, was not stated through oversight. During the pendency of the appeal, the petitioner tenant realised the said lacuna in the written statement and to overcome and future technical defence, he had filed the amendment application by way of abundant precaution, seeking to amend his written statement. The land-lord obviously resisted the application and submitted that it was a totally mala fide application and prayed that the same may be dismissed. The fifth Additional District Judge, Pune, heard the said application and was pleased to dismiss the same by his judgement and order dated 16th February, 1989. The petitioner tenant was aggrieved by the said order and, therefore, has filed the above civil revision application under section 115 of the Code of Civil Procedure, 1908. He has challenged the said order of the Appeal Court on various grounds and prayed that the said order should be set aside and his amendment to the written statement may be allowed. The aforesaid civil revision application was admitted and expedited on 23-6-1989 and the proceedings before the Appeal Court were stayed. As already stated hereinbefore that during the pendency of the C. R. A. , the landlord of the suit premises died on 25-8-1991 and the petitioner filed a civil application to implead his heirs as late on 1-9-1993. Accordingly to Shri Vaze, even this fact indicates mala fides of the petitioner as before the Appeal Court such an application was filed in 1992, and that the petitioner merely wants to drag the litigation, which, according to me, he has successfully done. Shri Vaze has enumerated a number of factors which do indicate the mala fides on the part of the petitioner to prolong and drag the litigation for ever. According to Shri Vaze, the alleged technical point was only an extremely feeble attempt to add to the delay. Shri Vaze submits that there was no reply to the land-lords notice dated 25-7-1979, there was no specific averment in the written statement filed by the tenant in respect of the date for which the amendment was sought, there was no submission before the trial Court to that effect, though the appeal was filed against the judgement and decree of eviction on 10-2-1986, the tenant has filed an application for amendment on 3-2-1987 and so on and so forth, which have contributed to the dragging of the litigation. On the contrary, Shri Navre, for the petitioner has argued that it was only a technical defence which was required in the circumstances and that the amendment should be allowed at any stage and that the power to allow the amendment should be exercised liberally. Shri Navre submitted that the notice was bad as requirement under section 106 of the Transfer of Property Act. I am not at all concerned with the merits of the matter. I am only concerned with the amendment application moved by the petitioner before the Appeal Court and the decision of the Appeal Court to reject the same. The learned Judge was pleased to expedite the matter by his order dated 16th February 1989. The learned Judge has dealt with the Amendment Application very exhaustively and has given cogent reasons for not allowing the petitioner tenant to amend his written statement. The learned Judge has come to a definite conclusion that the proposed amendment was not bona fide and that if allowed it would cause prejudice or injustice to the respondent particularly when the tenant had already raised in his written statement a ground regarding invalid and illegal termination of the tenancy and therefore there was absolutely no reason to amend the written statement. The learned Judge has further observed that the proposed amendment if allowed would completely change the entire nature of the original defence and it would amount introduction of a new plea that the monthly tenancy commenced from 17th of a month as per the English Calendar. The learned Judge, has, therefore, concluded that the proposed amendment was not at all necessary for the complete and effective adjudication of the matter and that it was not at all necessary for the purpose of determining the real question in controversy between the parties. It is significant to note that the learned Appeal Court had taken note of the age of the landlord in the year 1979, he was 70 years of age. The learned Judge has specifically mentioned that the appeal was adjourned from time to time on one pretext or the other and that desperately and rightly so he rejected an adjournment application, filed by the petitioner tenant before him on 15th February 1989. The learned Judge has definitely doubted the bona fides of the petitioner and, therefore, he has declined to exercise the judicial discretion in favour of the tenant. There is absolutely no doubt that the litigation has been protracted and has been kept lingering for years together. I entirely agree with the reasoned order of the Appeal Court and I do not find any reason to interfere with the same. When the applicants bona fides are in doubt, I do not want to exercise the power to allow amend liberally. The Civil Revision application is, therefore, dismissed, with costs. The appeal Court is directed to dispose of the appeal as early as possible within a period of four months from today. C. R. A. dismissed.