Point of Law: In exercise of its jurisdiction under Article 227, High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess evidence upon which inferior court or tribunal has passed an order.

JUDGMENT :

This application has been preferred by plaintiff under Order 6 Rule 17 of the Code of Civil Procedure (for short “CPC”) seeking amendment in the plaint by adding sentences in para 4 of the plaint and insertion of para 4A after para 4 of the plaint.

2. Stage of the suit is that written statement stands filed and replication thereto is yet to be filed.

3. Plaintiff has filed a suit claiming ownership of plaintiff on entire Cecil Hotel Estate including the Hotel Oberoi Cecil of which Cecil Annexee also forms a part and parcel thereof.

4. In the written statement objection has been taken by the defendant that owner of the property is Bhagwanti Oberoi Charitable Trust and not the plaintiff and, therefore, locus of plaintiff has been disputed to maintain the suit.

5. By way of proposed amendment, plaintiff seeks addition of certain sentences in para 4 of the plaint, stating therein that plaintiff is owner of structure known as Regent House Apartments and the said structure has been built on land which is property of Bhagwanti Oberoi Charitable Trust and plaintiff Company’s predecessor-in-interest EIH Limited was granted a permanent license by the aforesaid Trust to build and construct the aforementioned apartments by expending its own funds and, therefore, plaintiff Company is owner of the structure compromising of aforesaid Apartments i.e. Regent House and Bhagwanti Oberoi Charitable Trust continues to be the owner of the land beneath the Apartments on which it has been built.

6. By inserting para 4(A), the amendment has been sought on the same lines that owner of land beneath the construction of structure is Bhagwanti Oberoi Charitable Trust, who has granted a license in favour of EIH (now EIH Associated Hotels Limited) to built the flats in question and further that rent collected from the Regent House Apartments is collected for the benefit of present plaintiff and not for Bhagwanti Oberoi Charitable Trust. Further that defendant No. 1 has always acknowledged EIH Associated Limited to be the owner of the suit property in reference and, therefore, earlier EIH limited was the owner of the suit property in question and now EIH Associated Limited is owner for all intents and purposes and rent receipts were always issued by the plaintiff Company.

7. Aforesaid application has been opposed by defendant on various grounds interalia amongst others, by filing reply, stating therein that plaintiff is not the owner of the suit property, but a Trust and, therefore, suit related to property owned and possessed by Trust is not maintainable in the present form, but a suit pertaining to land and property owned by Trust is maintainable only if it is filed by all Trustees of the Trust and other persons or Company including plaintiff has no authority to do so. It has been further submitted that in case amendment sought is allowed, it will change very nature of the suit causing prejudice to the entire defence set up by defendants.

8. It has been further contended that by way of proposed amendment plaintiff Company wants to withdraw its admissions and to introduce totally new case of irrevocable license, which is neither permissible under law nor on facts.

9. It has been further contended on behalf of defendant that in revenue records and factually also Bhagwanti Oberoi Charitable Trust is recorded as actual owner in possession of the suit land and no permanent license has been granted in favour of plaintiff or its alleged predecessor-in-interest Company. Further that a new case is being introduced which is totally different and inconsistent with pleas earlier taken in the plaint. It has been stated on behalf of defendant that new plea sought to be added with regard to ownership of the suit property is totally inconsistent, which will change fundamental nature of the suit and, therefore, present application deserves to be dismissed.

10. Learned counsel for the plaintiff has placed reliance upon pronouncement of the Supreme Court in Raj Kumar Bhatia