Order 2

Order Details: Order on Exhibit
Pdf Text: IN THE SMALL CAUSES COURT AT MUMBAI
( BANDRA BRANCH )
ORDER BELOW EXHIBIT NO. 13
IN
R. A. E. SUIT NO. 59 OF 2022
C. N. R. NO. MHSCA30001052022
Mr. Radheshyam Chunilal Badsiwal …Plaintiff
V/s
Mr. Subhash Vrahaspati Dubey …Defendant
********
Mr. M. R. Badsiwal, Advocate for Plaintiff.
Mr. Madaswami Chettiar, Advocate for Defendant.
********
Coram : V. G. Upadhye, Judge
Court Room No.33
Date : 04th July, 2024
ORDER
This is an application filed by the plaintiff seeking amendment
in the plaint. It is contended in the application that the defendant in
his written statement denied the title of the plaintiff. In fact, he has
admitted the plaintiff as owner and landlord of the suit property in
various communication and documents. The plaintiff disclosed that
as per family settlement dated 07.09.1984, his brother late Ramgopal
Badsiwal was collecting rent from the tenants of 2nd and 3rd floor of
the building ‘Gopal Niwas’ while he was collecting the rent from the
tenants of ground and first floor. As Ramgopal Badsiwal was not
paying municipal taxes to B.M.C., to avoid attachment and auction of
the entire suit property, he had filed the Suit No.7503/1994 against
his brother and all the tenants of 2nd and 3rd floor of the building. In
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that suit, he had taken out an application for appointment of Court
Receiver for collecting rent/compensation from defendant Nos.2 to
11 of that suit. The said application was allowed and the Court
Receiver was appointed for collecting the rent as prayed for. The said
suit was decreed on 26.02.1999 in favour of the plaintiff. Thereafter,
the defendant and nine others had filed Standard Rent Application
No.7/2009 against the deceased landlady. During pendency of that
Standard Rent Application, the landlady died and her legal
representatives including the plaintiff were brought on record. The
defendant and other tenants have accepted the plaintiff as their
owner and landlord of the suit premises. There was amicable
settlement in the Standard Rent Application wherein, the defendant
and other tenants of the building had agreed to pay the arrears of
rent of the tenanted premises to the plaintiff. Accordingly, the
tenants of 2nd and 3rd floor including the defendant have paid the
arrears of rent to the plaintiff and continued to pay it. The plaintiff
has issued the rent receipts in favour of the defendant and the
defendant has countersigned it. Therefore, the denial of title of the
plaintiff by the defendant is surprising and it is one more ground to
claim eviction of the defendant from the suit premises. Thus, in view
of these events, plaintiff wants to incorporate additional pleading in
the plaint. He has proposed insertion of para Nos.8(a) to 8(s) in the
plaint as per the schedule annexed.
2. The defendant has strongly opposed this application by filing
say at Exh.14 and the plaintiff by filing rejoinder at Exh.15 denied
the allegations made in the written reply. The defendant explained
that he is tenant of Shop No.5 (garage) of the ground floor of Gopal
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Niwas from last several years. The said building was constructed by
Sonibai Chunilal Badsiwal. In her lifetime, she divided the suit
property i.e. Gopal Niwas between her two sons i.e. the plaintiff and
late Ramgopal Badsiwal. As per that family arrangement, the plaintiff
was entitled to collect the rent from tenants of only ground and the
1st floor. Late Ramgopal Badsiwal was entitled to collect the rent
from the tenants of 2nd and 3rd floor. This arrangement was later on
changed and he was paying the rent to Gopal Badsiwal and not the
plaintiff. After his death, his legal heirs are collecting the rent and
the defendant is paying the rent to legal heirs of late Ramgopal
Badsiwal. The present suit is filed without any cause of action. The
proposed amendment is not at all necessary and relevant to the issues
involved in the case. The defendant has not denied title of the
plaintiff but he has denied existence of landlord-tenant relationship
between himself and the plaintiff. Hence, application be rejected.
3. Heard both sides. Perused case record.
4. It is evident from the record that, the present suit is filed for
eviction of the defendant on the sole ground of bonafide requirement
of the plaintiff of the suit premises for his personal occupation. The
plaintiff has produced certain documents along with the present
application. One of the document is the decree passed in Short
Cause Suit No.7503/1994 by the Hon’ble Bombay City Civil Court
dated 26.02.1999. By virtue of this decree, the plaintiff was allowed
to collect the rent from the tenants of 2nd and 3rd floor of Gopal
Niwas. The tenants of the ground floor and the first floor were not
parties to that suit. As per the decree passed in that suit, the plaintiff
was ordered to pay municipal and other taxes payable in respect of
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the suit premises and to handover the balance amount of rent so
collected to late Ramgopal Badsiwal. Copy of Consent Terms filed in
R.A.N. No.7/SR/2009 also shows that by virtue of that settlement,
the tenants of Gopal Niwas had agreed to pay arrears of rent and the
increased rent to the plaintiff. The copies of rent receipts produced
by the plaintiff also prima facie show that the defendant had paid
rent to the plaintiff after the settlement in the Standard Rent
Application proceeding.
5. It is also manifest from the averments made in the written
statement that the defendant has denied existence of landlord-tenant
relationship between himself and the plaintiff. However, he has not
produced copy of any rent receipt to show that he has paid the rent
to late Ramgopal Badsiwal or his heirs. Therefore, this is the crux of
the matter and in view of the defense taken up by the defendant, it
would be justifiable to allow the plaintiff to amend the plaint so as to
incorporate disclosure of certain facts occurred between himself and
the defendant.
6. It is cardinal principle of the pleading that it shall contain, and
contain only, a statement in a concise form of the material facts on
which the party pleading relies for his claim or defence, as the case
may be, but not the evidence by which they are to be proved.
7. Herein this case, the proposed amendment is not as per this
rule. The plaintiff has proposed to insert the averments relating to
evidence upon which he relies his claim of eviction on the ground of
denial of his title by the plaintiff. The proposed Nos.8(b) to 8(r) are
unnecessary though not irrelevant. The insertion of paragraph
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Nos.8(b) to 8(r) would amount to pleading the evidence and not the
material facts which are expected to be pleaded to keep the plaint in
concise form. Therefore, in the circumstances, I am inclined to pass
following order :
ORDER
1 Application at Exh.13 is partly allowed.
2 The plaintiff is permitted to amend the
plaint so as to insert only para Nos.8(a)
and 8(s) of the schedule annexed with the
application with certain grammatical
changes that are required.
3 The plaintiff shall carry out the
amendment in the plaint on or before the
next date and he shall supply amended
copy of plaint forthwith thereafter.
( Dictated and pronounced in open Court. )
( V. G. Upadhye )
Date : 04.07.2024 Judge, C. R. No.33
Order dictated on : 04.07.2024
Order checked & signed on : 04.07.2024
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