Interim Order 6

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT 32
IN
R.A.E. & R. SUIT NO.53 OF 2021
(CNR : MHSCA3-000071-2021)
Mr. Ranjit Singh Chndhok … Plaintiff
V/s
Mr. Bhagwandas Santani ... Defendant
Coram : D. P. Kasat,
Judge, C.R.No.32 (B.B.),
Date : 28.04.2025
ORAL ORDER :
Read application, say at Exh.34 and rejoinder at Exh.35.
2. Heard both sides. Perused record. The learned advocate
of defendant relied on following case laws :
1. Riyazunnisa Begum Mohd. Jaffar v/s. Abdul Qadar
Sk. Ameer and anr., 2022(2) ALL MR 225 ;
2. T. P. Palaniswami and another v/s. Deivanaiammal
and others, AIR 1984 Madras 19.
On the contrary, the learned advocate of plaintiff relied
on in the case of Kailash v/s. Nanhku and ors., (2005)3 SCR 290.
3. It is the contention of the defendant that while partly
allowing his application at Exh.25, oral liberty was granted to him to
make necessary application for amendment in written statement.
Thereafter, under RTI, he has received copy of ‘P’ Form in respect of
water connection in the suit property and the names of beneficiaries
of water connection. Accordingly, it is transpired that there are four
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water connections given in the suit property out of which the
connections on ground and first floor are given for commercial
purpose. Thereafter, around the year 1979, second and third floor
were constructed. Even it was transpired that the suit building is not
having occupation certificate from BMC. Previously plaintiff and
other co-owners of suit building used to pay water bills by
contributing their 1/4th proportionate share alongwith tenants.
However, thereafter, the plaintiff refused to accept his proportionate
1/4th share of water bill. Accordingly, a letter dated 12.05.2023 was
issued by him to the plaintiff alongwith three cheques towards his
share in the outstanding water bill. However, the plaintiff by reply
dated 01.06.2023 returned those cheques. However, by taking
advantage of said oral order, the plaintiff has demolished the existing
underground water tank under the pretext of repairs and
maintenance and constructed a new water tank of greater capacity.
Even the compound of suit building is let out by the plaintiff to a
restaurant with corresponding wash rooms. To this additional facility,
unauthorised water inlet has been provided. All these incidence took
place after filing of his written statement in August 2021. More so,
Hon’ble Supreme Court by judgment dated 07.11.2022 has declared
levy of property tax by MCGM on the basis of capital value as illegal
and directed MCGM to refund the illegal tax collected. Accordingly,
the plaintiff has received the refund of tax, however, has not repaid
his share therein, despite request. As such, the ground of eviction
raised by the plaintiff is false and therefore, the suit is not
maintainable. Accordingly, he has tried to contend that due to these
subsequent events, the proposed amendment has been necessitated.
4. The plaintiff has resisted the application by contending
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that after filing of written statement on 28.09.2021, the issues were
framed on 02.01.2024 and the matter is posted for evidence. As such,
there is bar of proviso to Rule 17 of Order 6 of the Code of Civil
Procedure and therefore, the amendment application is not
maintainable. Further by denying all the contentions in the
application, he has prayed for rejection of the application.
5. At the outset, it is essential to mention here that, while
looking at the nature of proposed amendment, it appears that the
defendant is intending to amend his written statement by contending
that the subsequent events have necessitated the same. In such
circumstances, the law laid down in the case of Kailash (cited supra)
referred by plaintiff is not applicable here.
6. Apart from this, it is needless to mention here that the
parameters required to be considered for granting amendment in
plaint and amendment in written statement are different. It is also
well settled law that while allowing amendment in written statement,
the court has to be liberal. More so, as per contention of defendant,
he came to know about the grounds contended in this application
after filing of his written statement. In such circumstances, being
subsequent event and in order to have final and complete
adjudication of the matter, the proposed amendment appears to be
justified. More so, though the plaintiff has tried to contend that the
proposed amendment would not affect the maintainability of suit and
therefore, the amendment cannot be granted, there appears no
substance in his contention as while adjudicating the application for
amendment, the merits of proposed amendment are not required to
be looked into. As far as the inconvenience caused to the plaintiff is
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concerned, it can very well be compensated in terms of costs. Hence,
following order :
ORDER
1. Application is allowed subject to costs of
Rs.2,000/- to be paid to the plaintiff on or
before next date.
2. Defendant to carry out amendment as
proposed in schedule, in the written
statement within 14 days and comply
accordingly.
3. Costs condition precedent.
(D. P. Kasat)
Judge, C.R.No.32 (B.B.)
28.04.2025
Dictated on : 28.04.2025
Checked & signed on : 28.04.2025
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