The main legal point established in the judgment is that an amendment to the plaint on the ground of misdescription of the plaintiff can be allowed if it is essential for determining the real question in controversy between the parties, even if the suit has abated.

JUDGMENT :

1. This Writ Petition filed under Article 227 of the Constitution of India, challenges Judgment and Order dated 26th September, 2019 passed by the Court of Small Causes in Interim Notice No. 760 of 2002, thereby permitting the Plaintiff (Respondent No. 1 herein) to carry out the amendment to the plaint i.e. T.E. & R. Suit No.68/73 of 2001, which in pending in the Court Small Causes at Bombay.

FACTS :-

2. One Mr. Mahendra V. Shah filed a T.E. & R. Suit No. 68/73 of 2001, in his capacity as proprietor of M/s. Mahendra Builders, against the present Petitioner and Respondent No. 3, on the ground of sub-letting under Section 41 of the Presidency Small Causes Court Act, for eviction of the Petitioner from the premises situated on the Second Floor of the building known as “CLIFFLET”, Worli, Mumbai, admeasuring around 4000 sq.ft. carpet area, being commercial premises (for short ‘the suit premises’).

3. In the same year of filing the Suit, on 19th September, 2001, Mr. Mahendra Shah died. After the death of Mahendra Shah, on 16th February 2001, his wife Pratibha and his daughter Shirin filed an Interim Notice No.259 of 2002 in the pending suit, to bring them on record in place of a deceased Mahendra Shah. So also, they preferred an Interim Notice No.626 of 2002, seeking an order of injunction against the Petitioner and Respondent No.3.

4. On 25 October 2002, Pratibha and Shirin filed an Interim Notice No.760 of 2002, praying therein;

(i) for withdrawal of Interim Notice No.259 of 2002 and;

(ii) also to allow them to Amend the plaint, so as to correct the misdescription of the plaint by deleting name of Mr. Mahendra Shah from the proceedings and the description of original plaintiff as sole proprietor of Mahendra Builders be substituted as Mahendra Builders Partnership Firm instead.

5. While these Interim Applications were argued on different dates and were pending for disposal, the eviction suit itself got dismissed for default on 12 June 2003, when neither the plaintiff nor the defendants were present in the Court. As soon as Pratibha and Shirin realized that the suit itself was dismissed, while the arguments on interim notices were made on different dates, they preferred an Application being Miscellaneous Notice No.151 of 2004 for Restoration of Suit and Interim Applications.

6. As Interim Notice No.760 of 2002, the plaintiff has prayed for withdrawal of Interim Notice No.259 of 2002. By an Order passed in Interim Notice No.760 of 2002, dated 26 March 2004, the Interim Notice No.259 of 2002 was withdrawn. While the Interim Notice No.760 of 2002 was adjourned for hearing on remaining prayers (Amendment).

7. Miscellaneous Notice No.151 of 2004, was thereafter heard and was made absolute by Order dated 29 March, 2006, thereby the Suit was restored back to file along with Interim Notice therein. The Petitioner/defendant being aggrieved by the Order dated 29th March, 2006 filed a Revision Application before the Division Bench of Small Causes Court challenging the Restoration of Suit. The said Revision Application was heard by the Division Bench of Small Causes Court and by its Order dated 7 December, 2006 the said Revision Application was dismissed. Against the said Order passed by the Division Court, the defendant being dissatisfied, filed a Writ Petition in this Court. The said Writ Petition was dismissed by this Court and SLP filed by the defendant before the Supreme Court was also dismissed.

8. Interim Notice No.760 of 2002 was thereafter taken up for hearing on remaining prayers by the Court of Small Causes. In the meanwhile, the Defendant No.1 (Wrangle) filed Suit, to declare them as a tenant of the suit premises against Mahendra Builders, a Partnership Firm and its partners Pratibha and Shirin.

9. The Single Judge of the Small Causes Court, heard Interim Notice No.760 of 2002 on remaining prayers and by his Order dated 26 September, 2019 allowed the said Interim Notice thereby permitting the Respondent No.1 to carry out the Amendme