Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT 16
IN
L. D. SUIT NO. 13 OF 2022
(CNRMHSCA30000832022
Mr. Suresh Kumar Jaiswal ...Plaintiff
Versus
Mr. Neena Navin Srivastava ...Defendant
Vikas Srivastava, ....learned Advocate for plaintiff.
Sachin R. Gelye, ….learned Advocate for defendant.
Coram : P. K. Kharate,
Judge, C. R. No.35,
Date : 9th June, 2023.
ORAL ORDER:
1. The plaintiff has filed application stating that plaintiff
wants to add para No. 2(a), 2(b) & 2(c) in plaint. The plaintiff
averred in the application that registered leave and licence between
plaintiff and defendant, there are two shops mentioned i.e. shop Nos.
58 & 59. But at the time of execution of leave and licence agreement
dated 10.04.2018, defendant has handed over the possession of the
only shop No. 59. The defendant has not handed over the possession
of Shop No. 58. The defendant is running his office in the name and
style of Digilogics Solution. But at the time of filing of plaint, the said
fact is not mentioned by the plaintiff. Hence, prayed to allow the
amendment application on respect clause No. 2.
2. The say filed by the defendant vide Exhibit17 stating
that the application is made with intention to harass the defendant
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and delay the hearing of the suit i.e. L. E. Suit No. 104 of 2022. The
plaintiff is trying to avoid to pay compensation to the defendant. Both
shops are in possession of plaintiff for running his hospital purpose.
The defendant denied that he is running the office of Digilogics
Solution from the shop No. 58. The plaintiff already refused to pay
compensation despite termination of notice dated 25.11.2021. The
plaintiff has already filed application vide Exhibit 18 and ready to
handover the possession of the suit premises on 01.03.2023. But later
on, he has withdrawn his application. Hence, prayed to reject the
application.
3. Heard both sides at length.
4. In the present case, it is one of the fact that there is
registered leave and licence agreement between both parties which of
dated 10.04.2018. On perusal of said registered leave and licence
agreement, it appears that Shop Nos. 58 and 59 are already handed
over to the plaintiff. The most important thing is that the defendant
has already issued termination notice on 25.11.2021 as plaintiff has
failed to pay the licence fees from July2021. The said L. E. Suit No.
104 of 2022 is pending today. I have already decided the application
of the defendant for the arrears of huge licence fees of more than Rs.
50 Lac. On perusal of w.s. of the defendant vide Exhibit14 in another
suit, it appears that plaintiff is running the Life Care Hospital from
suit shop. But there is nothing mentioned in plain about the handover
of only one shop by the defendant. There is nothing on record which
show that only one shop is handover by the defendant at the time of
registered leave and licence agreement. It appears from the record
that the plaintiff is trying to avoid payment of huge licence fees.
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5. The advocate for plaintiff relied on citation of Hon'ble
Rajasthan High Court in the case of Sakoor And Etc. Vs. Jaipur
Development Authority reported in AIR 1987 Raj 19, 1986. The
advocate for the plaintiff relied on citation of Hon'ble Jammu &
Kashmir High Court in the caseof Pt. Govind Ram Vs. Ram
Saroop reported in AIR 1999 J K 63. On perusal of both citations of
the Hon'ble Rajasthan High Court, it appears that it is under Order 8
rule 9 of C.P.C. But on perusal of prayer clause of the plaintiff in the
present application, it appears that it is under Order 6 rule 17 of
C.P.C. Hence, fact of the present is different than the case cited
above.
6. The advocate for the plaintiff relied on citation of
Hon'ble Orissa High Court in the case of Salicharan Bisi Vs.
Rujhari and Anr reported in AIR 1979 Ori 78. The Hon'ble Orissa
High Court held that the amendment can also be allowed at later
stage. The Hon'ble High Court also held that if the amendment is
malafide and cause injury to his opponent, it cannot be allowed. In
the present case, plaintiff is trying to withdraw his admission about
the possession of two shops. It is against the registered leave and
licence agreement and it cause injury to the defendant. Hence, the
amendment application cannot be allowed. Hence, above citation is
applicable but in favour of the defendant.
7. The advocate for the plaintiff relied on citation of
Hon'ble Apex Court in the case of Olympic Industries Vs. Mulla
Hussainy Bhai Mulla Akberally and Ors decided on 7 July, 2009
In Civil Appeal Nos. 4148 4149 of 2009. The Hon'ble Apex Court
has discussed about the provision of Order 8 rule 9 of C.P.C. But
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present application is filed as per Order 6 rule 17 of C.P.C. Hence,
considering facts of the present case, the above citation is not
applicable in the present case.
8. The advocate for the plaintiff relied on citation of
Hon'ble Apex Court in the case of Gurdial Singh Vs. Raj Kumar
Aneja decided on 4th February, 2002 In Appeal (civil) 2896 of
2001. The Hon'ble Apex Court held that the amendment made by the
opposite party is not misused for the purpose of setting up altogether
new plea. In the present case, the plaintiff has surprised the
defendant by saying that defendant has handed over only one shop.
Moreover, the silence of the plaintiff from April 2018 is also speaks
much more. There is nothing on record which support the alleged
amendment of the plaintiff. Hence, above citation is applicable but in
favour of the defendant.
9. The advocate for the defendant relied on citation of
Hon'ble Apex Court in the case of M/s. Revajeetu Builders and
Developers Vs. M/s. Narayanswamy and Sons reported in AIR
2009 SC (Supp) 2897. The Hon'ble Apex Court held and discussed
in respect of the amendment of the plaint. The Hon'ble Apex Court
stated that application for amendment is bonafide or malafide it is
necessary to be seen. On perusal of the facts of the present case, it
appears that the application of the plaintiff is malafide with an
intention not to pay huge licence fees of the defendant.
10. Hence, considering above discussions, it appears that
there is no merit in amendment application of the plaintiff. Hence, I
pass the following order.
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: O R D E R :
1. The application below Exhibit16 is rejected.
2. No order as to costs.
(Dictated and pronounced in Open Court.)
Bandra Mumbai. ( P. K. Kharate )
Date :09.06.2023 Judge, C. R. No.35
Order dictated on computer : 09.06.2023
Order checked & signed on :09.06.2023
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