Amendment under Order VI Rule 17 CPC post-trial allowed in subletting suit where due diligence shown via discovery of tenant's documents evidencing rent from third party, as initial burden discharged by exclusive possession proof shifting onus to tenant.

JUDGMENT :

MADHAV J. JAMDAR, J.

1. Heard Mr. Shah, learned Senior Counsel appearing for the Petitioners and Mr. Godbole, learned Senior Counsel appearing for the Respondents.

2. By the present Writ Petition filed under Article 227 of the Constitution of India, the challenge is to the legality and validity of the Order dated 11th October 2024 passed by the learned Judge of the Small Causes Court at Mumbai below Exhibit-65 in RAE Suit No.1077/1744 of 2012 as confirmed by the Order dated 5th April 2025 passed by the learned Appellate Bench of the Small Causes Court at Mumbai in Revision Application No.90 of 2025 in Exhibit-65 in RAE Suit No.1744 of 2012. The said Application bearing Exhibit-65 was filed seeking amendment in the Plaint as per the Schedule. The said Application was rejected on the ground that trial has commenced and the Petitioners i.e. Plaintiffs failed to establish the due diligence test. The Revisional Court also dismissed the Revision on the same grounds.

3. It is the contention of Mr. Shah, learned Senior Counsel for the Petitioners i.e. Plaintiffs-Landlords that Respondent No.1 i.e. Defendant No.1 - Industrial Leather Co. Pvt. Ltd.-the Original Tenants had sublet the suit premises to Respondent No.2-Magic Eye Pvt. Ltd. He submitted that as per the law laid down by the Supreme Court in the decision of Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar , (2010) 1 SCC 217 as far as the ground of subletting is concerned, initial burden on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. He submitted that in the evidence of the Petitioners/Plaintiffs, it is well established that Defendant No.2 i.e. Respondent No.2 is in possession of the suit premises. He submits that although Amendment Application has been filed when the evidence was over and the matter was at the stage of arguments, however, the documents which have been sought to be produced by proposed amendment i.e. the Income Tax Returns of Respondent No.2/Defendant No.2, show that the rent has been paid to Respondent No.1/Defendant No.1. He submits that therefore the documents sought to be produced are very important for the purpose of proving the ground of subletting and, therefore, after getting knowledge about the said documents, an Application was filed on 10th November 2023 under Order VI Rule 17 of the Code of Civil Procedure, 1908 (“CPC”) (Pages 112-119). He submits that in the common written statement which has been filed by Defendant Nos.1 and 2, it is specifically denied that Defendant No.1 unlawfully sublet or parted with possession or inducted or assigned its interest to Defendant No.2. He pointed out the Reply to the Amendment Application bearing Exhibit-65. In the said Reply, it is specifically admitted that Defendant No.2 has been occupying the suit premises. He pointed out Paragraph Nos.5 to 10 of the Application seeking Amendment of the Plaint and submitted that in the facts and circumstances, due diligence has been shown. He relied on the decisions of the Supreme Court in Chander Kanta Bansal v. R