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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Anuja Prabhudessai, J.
Mr. Stanislaus J.T. D’Souza (since deceased) : Mrs. Katherine Anne D’Souza and Ors. - Petitioners
Versus
Mr. Federick Cyril Braganza and Anr. - Respondents
Writ Petition No. 2587 Of 2021
Decided On : 17-11-2022
Order VI Rule 17 of the CPC allows the Court to allow either party to alter or amend their pleadings at any stage of the proceedings. The Court should consider whether the amendment is necessary to determine the real questions in controversy, whether the application is bonafide or malafide, and whether it will cause prejudice to the other side. The Court should be liberal in granting the prayer for amendment, particularly in the case of a written statement. Delay in filing the application is not a ground for refusal. The Court should exercise its discretion judiciously and consider the facts and circumstances of each case.
Fact of the Case:
The dispute is regarding the eviction of the Defendant from a flat owned by the Plaintiff. The Plaintiff claims bonafide requirement and non-payment of rent as grounds for eviction. The Defendant disputes the bonafide requirement and claims that the Plaintiff already has suitable accommodation. The Defendant filed an application for amendment of the written statement and appointment of Commissioner. The Trial Court dismissed the application, and the Appellate Bench confirmed the dismissal. The Defendant filed a Writ Petition under Article 227 of the Constitution of India. The Court dismissed the petition, stating that the proposed amendment is not necessary to determine the real controversy between the parties and that the appointment of Commissioner is not required for collecting evidence.
Finding of the Court:
The Court considered Order VI Rule 17 of the CPC, which allows amendment of pleadings. The Court held that the amendment should be necessary to determine the real questions in controversy, should be bonafide, and should not cause prejudice to the other side. The Court also considered relevant precedents and held that the Court should be liberal in granting the prayer for amendment, particularly in the case of a written statement. The Court further held that delay in filing the application is not a ground to refuse the prayer for amendment. The Court concluded that the proposed amendment and appointment of Commissioner were filed after a significant delay and were intended to delay the proceedings. The Court found no illegality or infirmity in the lower court's decision.
Ratio Decidendi: The Court should be liberal in allowing the amendment of pleadings if it is necessary to determine the real controversy between the parties and does not cause prejudice to the other side. Delay in filing the application for amendment is not a ground for refusal. The Court should consider the facts and circumstances of each case and exercise its discretion judiciously.
Result: The Writ Petition is dismissed, and the Trial Court is directed to dispose of the suit within six months from the date of the order.
JUDGMENT :
1. This Petition under Article 227 has been filed assailing order dated 10/02/2020 whereby learned Appellate Bench, Small Causes Court dismissed the Civil Revision Application No.35 of 2020 and thereby confirmed the order dated 16/11/2019 passed by learned Small Causes Court, Mumbai rejecting Application for amendment of written statement and appointment of Commissioner.
2. The Respondents are the legal representatives of the original Plaintiff-Joanita Braganza (hereinafter referred to as the ‘Plaintiff’). The Petitioners are the legal representatives of the original Defendant - Stanislaus J.T. D’Souza (hereinafter referred to as ‘the Defendant’).
3. The dispute is in respect of premises being flat No.F/4 in building Fairville Estate, Plot No.68, Juhu, Vile Parle. The said premises (hereinafter referred to as ‘the suit premises’) admeasures 670 sq. feet and comprises of 02 bedroom, hall and kitchen with 02 sanitary blocks. The Plaintiff is the owner of the suit premises. In the year 1972, the Plaintiff had entered into a leave and license agreement in favour of the Defendant and put him in possession of the suit premises. In the year 1994, the Plaintiff filed a suit for eviction inter alia on the ground of bonafide requirement and non payment of rent. The Plaintiff claims that despite being the owner of the suit premises, she and her family members are constrained to reside in a tenanted premises at Byculla, which is insufficient to accommodate the large family. The Plaintiff also claimed that the Defendant had failed and neglected to pay the rent.
4. The Defendant contested the suit and disputed bonafide requirement of the Plaintiff and claimed that the premises in possession of the Plaintiff are spacious enough to accommodate her family. The Defendant claimed that the Plaintiff had failed to give particulars of the tenanted premises at Byculla. The Defendant also denied that they are in arrears of rent and further claimed that greater hardship will be caused to her if the decree of eviction is passed in favour of the Plaintiff.
5. The Trial Court framed the issues on 27/11/2003 and recorded the evidence of the Plaintiff as well as of Defendant No.1(d). At the fag end of the trial, the Defendant filed an application for amendment of the written statement and for appointment of Commissioner. By the proposed amendment, as contained in the Schedule, the Defendant has sought to incorporate pleadings that :
(ii) that the allegations of the Plaintiff that Mr. Anaclet and his family are also residing at Byculla is false to the knowledge of plaintiff. That said Anaclet and his family are residing at Flat No.16, 3rd floor, Orlem Luciana Co-operative Housing Society, Malad West, Mumbai. That the Defendant had personally visited the building and taken photographs which show that the said flat is owned by Juliana, the wife of Anaclet.
(iii) great hardship will be caused to the Defendant if the decree of eviction is passed in favour of the plaintiff as compared to the hardship that will be caused to the Plaintiff since the Plaintiff is comfortably residing in the premises at Byculla and that Anaclet is residing comfortably in the flat in Orlem Society.
(iv) the suit premises is the only premises available to the Defendant No.1(d). That after filing of the suit, the Defendant tried to search for alternative premises in the vicinity but the price of the premises available is beyond his reach.
6. The Defendant also filed an application for appointment of Commissioner on the ground that the Plaintiff and his sister have falsely deposed that the premises in their possession consists of one room, hall and kitchen. Defendant claimed that he was recently informed by an unknown person that the said p
The Court should be liberal in allowing the amendment of pleadings if it is necessary to determine the real controversy between the parties and does not cause prejudice to the other side. Delay in fi....
Amendment may be justifiably allowed where it is intended to rectify absence of material relevant in plaint.
The duty of the advocate to obtain relevant instructions and the need to avoid penalizing litigants for unintentional omissions.
Amendments can be allowed at any stage of the proceedings to determine the real controversy between the parties, provided they do not cause injustice or prejudice to the other side. A hyper-technical....
The amendment application under Order VI Rule 17 CPC can be rejected if it's belated and lacks due diligence, especially when it does not materially impact the bona fide requirement.
Categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment.
Bona fide requirement of landlord must be assessed based on actual need at the time of filing; subsequent events do not overshadow genuine intent if prior evidence supports the claim.
Point of Law : Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the court may at any stage of the proceedings allow either party to alter or amend ....
Amendments to pleadings after the commencement of trial are restricted and require demonstration of due diligence to be permitted.
Courts cannot examine merits while deciding plaint amendment under Order VI Rule 17 CPC; Article 227 does not permit High Courts to reassess evidence or interfere with discretionary orders absent jur....
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