Interim Order 2

Order Details: Order on Exhibit
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CNR No. MHSCA-3000815-2021
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit 17
In
R. A. D. Suit No. 381 of 2021
Mr. Shabbir Hussain Abdul Rehman Shaikh ….... Plaintiff.
V/s.
Mr. Munawar Haroon Khan …... Defendant.
Advocate for the plaintiff : Mr. D. R. Pandey
Advocate for the defendant : Mr. Rajesh Devgharkar
Coram : K.M. Kayangude,
Judge, C.R. No. 38 (B.B.)
Date : 08.11.2023
Oral Order :
This is an application on behalf of the plaintiff for
amendment of the plaint.
2. It is asserted that the rent receipt executed by the
defendant in favour of the plaintiff on 05/06/2021 was lost alongwith
other documents and therefore the plaintiff filed complaint to concern
police station. The defendant has also borrowed loan from the bank
and he is deliberately not repaying the same. The bank officers are
disturbing the possession of the plaintiff. The Chairman of the society is
also disturbing the possession of the plaintiff. In order to decide the
suit, the averments in respect of abovementioned fact needs to be
incorporated in the plaint. Hence, the plaintiff prayed to allow the
application.
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3. The application is contested by the defendant by filing
reply vide Exh. 20. As per the defendant, the applicant has not
produced on record authority to show that he is the C.A. of the plaintiff.
The present application is filed after span of 1 year and 6 months after
alleged loss of documents. The plaintiff failed to file his evidence on
record. The plaintiff is only prolonging the matter. The alleged rent
receipt is forged and fabricated. For that purpose, a separate criminal
proceeding is initiated against the present plaintiff. There is no concern
of bank loan and its recovery in the present suit. The remedy is
available to the plaintiff under SARFAESI Act. As the Criminal
proceeding is initiated in order to avoid production of original
documents which can be forwarded to the Handwriting Expert, the false
story has been concocted by the plaintiff. Therefore, the application is
devoid of merits and accordingly prayed to reject the application.
4. The plaintiff filed rejoinder vide Exh. 21 and asserted that
the present applicant is C.A. of the plaintiff and he will produce the
power of attorney when Court requires it. By mentioning other
contentions and denying the reply, the plaintiff prayed to allow the
application.
5. Heard both sides. It appears from the record that the issues
are framed vide Exh. 13 on 04/07/2022. Thereafter, the matter is fixed
for the evidence of the plaintiff. As the plaintiff failed to adduce
evidence the matter was kept for the dismissal order by passing order
below Exh. 1 on 10/01/2023. Thereafter, plaintiff moved application
Exh. 16 to remove the matter from dismissal caption. On the same day,
the plaintiff filed present application for the amendment of the plaint.
Therefore, from the record it is crystal clear that the trial of the present
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suit is already commenced. Therefore, it is mandatory on the part of
the plaintiff to satisfy this Court that inspite fo due diligence he failed to
raise proposed amendment before the commencement of the trial.
6. The alleged incident of loss of the rent receipt is of
15/09/2021. The alleged incident of bank officers is of 1st week of
February, 2023. The plaintiff nowhere specifically mentioned since
when the Chairman of the society is disturbing his possession. No
reason has been assigned why the plaintiff failed to raise proposed
amendment in respect of lost of rent receipt prior to the commencement
of trial.
7. Moreover, in view of Order VI Rule 17 of the Code of Civil
Procedure, 1908 amendment can be allowed which is necessary for the
purpose of determining the real question in the controversy between the
parties.
8. In the present matter, as per the plaintiff, the previous leave
and license agreement was cancelled and new tenancy was created.
On the said basis, the plaintiff claimed declaration of his character as a
tenant in respect of the suit premises. The defendant denied the
relationship of landlord and tenant between the parties. As per the
defendant, the registered leave and license agreement is executed
between the parties on 05/08/2020. Thus, as per the defendant there
is a licensor and licensee relationship between the parties. Therefore,
considering the controversy involved in the present suit, issues are
framed by my learned Predecessor vide Exh. 13.
9. In the light of above controversy, it is necessary to consider
whether the proposed amendment is helpful to decide the controversy
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involved in the present suit. The amendment in respect of rent receipt
was lost is a part of evidence and therefore as it is allegedly contended
that the receipt is lost after the institution of the suit, the plaintiff can
lay down the foundation to lead the secondary evidence only in the
evidence. Therefore, the proposed amendment is at all not necessary to
decide the controversy involved in the present suit.
10. The alleged disturbance of the possession by the Chairman
of the society and bank officers is at all not relevant to decide the
character of the plaintiff as a tenant. Therefore, the proposed
amendment to that respect is at all not relevant and necessary to decide
the controversy involved in the present suit. Therefore, the proposed
amendment is not helpful for deciding the controversy between the
parties. In the result, the condition laid down in the Rule 17 of Order
VI of the Code of Civil Procedure is not fulfilled in the present matter.
Hence, it is a fit case to reject the present application. Accordingly,
following order.
:: O R D E R ::
Application Exh. 17 stands rejected.
(Dictated and pronounced in the open court.)
sd/-
(K.M. Kayangude)
Date : 08.11.2023 Judge, C.R. No. 38 (B.B.)
Dictated & Typed on : 08/11/23
Checked & Signed on : 09/11/23
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