JUDGMENT - DAGA V.C., J.:-Rule, returnable forthwith.

By consent, petition is heard finally.

2.This petition is directed against the order dated 12th November, 2003 passed by the Small Causes Court at Mumbai in Interim Notice No. 4099 of 2003 in R.A.E. R. Suit No. 9/15 of 1998, whereby the interim notice seeking amendment to the plaint came to be dismissed.

The Facts :

3.The facts giving rise to the present petition are as under :

That the plaintiff has filed suit for possession of the suit premises being room No. 2 located on the first floor of the House No. 100/ B situated at Navnit Chowk, Worli Koliwada, Worli, Mumbai 400 025, contending that the defendant is a tenant; who did not pay arrears of rent and permitted increases from March, 1994 till the date of filling of the suit as such he has rendered himself liable for eviction from the suit premises under the provisions of the Bombay Rent Act.

4.On being noticed, the defendant appeared and filed his written statement contending that the suit premises is a newly constructed and/or erected room, constructed by the defendant himself, and he being the owner of the said premises the suit for eviction is liable to be dismissed.

5.The petitioner/original plaintiff, after receipt of written statement realised that the house number mentioned in the plaint was erroneous. The correct number ought to have been 129/C rather than 100/B as stated in the plaint. He thus took out interim notice and filed affidavit in support thereof stating on oath that the plaintiff has issued separate notice under section 12(2) of the Bombay Rent Act prior to the suit and the said notice was replied by the defendant through his Advocate. In the said correspondence suit premises was described as room No. 2 situated on the first floor of house No. 129/C. The reply given by the defendant through his Advocate also makes a reference to house No. 129/C. The plaintiff, therefore, moved motion for amendment and in the affidavit in support thereof stated that in para 1 of the plaint he has wrongly described house number as 100/B through oversight and mistake. He further stated that he is not the owner of house No. 100/B but he is the owner of house No. 129/C. As such he sought correction in the plaint by substituting house No. 100/B with that of house No. 129/C. This amendment sought by the plaintiff came to be rejected by the trial Court vide its order dated 12th November, 2003. This order is a subject matter of challenge in this petition filed under Article 227 of the Constitution of India.

The Submissions :

6.Mr. Dani learned Counsel appearing for the petitioner urged that there was bona fide mistake crept in the plaint if the amendment is allowed the said amendment is not going to change the nature of the suit. He further submitted that admittedly, he is not the owner of house No. 100/B and therefore, he could not have filed suit describing the suit property as house No. 100/B He further pointed out that in all the correspondence between the rival parties both have referred to house No. 129/C and not house No. 100/B as such he submitted that the mistake crept in the plaint needs to corrected at the earliest opportunity. He further submitted that if the amendment is allowed no prejudice is going to be caused to the defendant.

7.Mr. Salve, learned Counsel appearing for the respondent/original defendant vehemently opposed this petition and went to the extent of filing written submissions contending how on merits the suit of the plaintiff is untenable. He thus tried to support the impugned order.

Consideration:

8.Having examined the impugned order and having considered the proposed amendment in the light of submissions of the rival parties, it cannot be said that the proposed amendment shall cause any prejudice to the respondent/defendant. If the proposed amendment is not allowed, then, it is bound to cause prejudice to the plaintiff. His suit is bound to fail. The suit is yet to go for trial. Admittedly, the plaintiff is

Click Here to Read the rest of this document