Final Order 1

Order Details: Copy of Judgment
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Presented on
Registered on
Decided on
:
:
:
03.12.2022
20.12.2022
12.06.2023
Period required for the disposal
00 Years 05 Months 22 Days
IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
Revision No. 130 of 2022
[CNR No.:- MHSCA3-001498-2022]
In
Exhibit 23
In
R.A.E. Suit No. 275 of 2018
Mr. Anil Gulabrai Gidwani,
Age 60, Occupation Business,
Residing at Flat No. 10, Second Floor,
Ganga Bhavan, Plot No. 459,
24th Road, Bandra, Bombay – 400 050. … Petitioner/
Email: akhanda.1@osu.edu, 9820604121 Org. Plaintiff
Versus
1. Mrs. Kaushibai Rajkumar Nagpal (Since deceased)
2. Mr. Vijay Nagpal (Full name not known)
Age around 59, Occupation Business,
Residing at Flat No. 6, 1st Floor,
Ganga Bhavan, Plot No. 459,
24th Road, Bandra, Bombay 400 050.
3. Mrs. Meena Vijay Nagpal
Age around 54, Occupation Housewife,
Residing at Flat No. 6, 1st Floor,
Ganga Bhavan, Plot No. 459,
24th Road, Bandra, Bombay 400 050.
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4. Ms. Rhea Vijay Nagpal
Age around 24, Occupation Employed,
Residing at Flat No. 6, 1st Floor,
Ganga Bhavan, Plot No. 459, ...Respondents/
24th Road, Bandra, Bombay 400 050. Org. Defendants
Appearance :
1. Appellant in-person.
2. Ld. Advocate Mr. A.A. Jakatdar, for Res. Nos. 2 & 3.
Coram: M. S. Pathan
Addl. Chief Judge &
D. S. Dabhade, Judge
Court Room No. 31
Date: 12th June, 2023
:: J U D G M E N T ::
(Per Dinanath S. Dabhade, Judge)
Being aggrieved by order dated 20th September, 2022,
passed by Ld. Judge of Trial Court Room No. 32 in Exhibit 23 in R.A.E.
Suit No. 275 of 2018, the petitioner/original plaintiff in person has
preferred this Revision Application under Section 34(4) of the
Maharashtra Rent Control Act, 1999. The parties are hereinafter
referred to their respective original nomenclature as the plaintiff and
the defendants.
2. It is the case of the plaintiff that he has filed amendment
application Exhibit 23 alongwith schedule of Amendment Exhibit 'A' to
amend the plaint on the ground of some new facts which came to his
notice and he requires to incorporate the same in the plaint. According
to the plaintiff, the new facts are; upto October-2018 defendant Nos. 2
to 4 were residing in the suit premises, from October-2018 they are no
longer residing in the suit premises and the suit premises was being
locked and vacant as defendant No. 1 is living in her ownership basis
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premises at Chembur.
3. Further the plaintiff contended that defendant No. 1 expired
in the month of April-2019. He is not aware, since October-2018, where
defendant Nos. 2 and 3 are residing. They are also not residing at the
address of Chembur. Defendant No. 4 is studding or working abroad
but he does not know her address of residence. Further, the plaintiff
contended that while drafting the plaint, he failed to include the prayer
for
Mesne Profits due to lack of legal knowledge and he is seeking to
incorporate the same in the plaint. He does not seek past
Mesne Profits
but is claiming future
Mesne Profits at the rate of . 1,424.78 ps.	₹
( .One thousand four hundred twenty four and paise seventy eight	₹
only) per month from the date of filing of the suit till the date of
recovery of possession of the suit premises.
4. In response to said application, defendant Nos. 2 and 3
have filed their reply at Exhibit 27 and resisted the application. They
contended that this is third application for amendment and the same is
not maintainable. Already the plaintiff has filed identical application at
Exhibit 14 and same has been rejected by Order dated 03rd December,
2019. Then, the plaintiff had filed second application Exhibit 18 for
amendment of plaint and same has been withdrawn by him. Then, the
plaintiff has filed present application Exhibit 23 on 28th September,
2021 for amendment of the plaint, specifically, to bring new clause of
Mesne Profits on fresh cause of action. Though, the plaintiff stated that
some new facts have come to his notice but he failed to state what new
facts are came to his notice. Though, the plaintiff stated that defendant
Nos. 2 and 3 are not residing in the suit premises since October-2018
but in fact they are residing in the suit premises. Defendant No. 4 has
temporarily gone to
Singapore for her studies and they have provided
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her address of
Singapore.
5. On hearing the both parties, application Exhibit 23 has been
rejected by order dated 20th September,2022. Therefore, being
aggrieved by said order, the plaintiff has preferred this revision
application on the grounds that the impunged order is erroneous,
perverese and contrary to the settled principles of law, the principles of
res-judicata is not applicable and Ld. Trial Court erred in overlooking
the fact of application Exhibit 14 and Exhibit 23 were substantially
different and not same.
6. The points along with our findings are under -
Sr. Points Findings
1. Whether the impugned order passed
on the amend applications needs
interference of this Court ?
In the Affirmative
2. What order ? As per final order.
7. The plaintiff in person argued that he had filed application
14 for amendment of the plaint on the ground that upto October-2018,
defendant Nos. 2 to 4 were residing in the suit premises, from October-
2018 they are no longer residing in the suit premises and the suit
premises is being locked and vacant as defendant No. 1 is living in her
ownership basis premises at Chembur. Defendant No. 4 is studding or
working abroad but he does not know where she reside. He also failed
to include the prayer for future
Mesne Profits due to lack of legal
knowledge and he is also seeking relief to incorporate the same in the
plaint. But the Court has rejected the said application. Hence, he has
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filed second application but later on he has withdrawn the same. Then,
he has filed third amendment application on the basis of new facts and
by mentioning the specific amount of
Mesne Profits to add clause of
Mesne Profits in the prayer of the plaint. But the Court has also rejected
the said third application on the basis of principles of the res-judicata.
He further submitted that in fact the principles of the res-judicata
never application to the present application. Hence, the order passed
by Ld. Trial Court on application Exhibit 14 and Exhibit 23 may set
aside and he may be permitted to carry out the amendment in the
plaint as per scheduled annexed with the applications. In support of
this argument he relied on the following authorities -
Sh. Tara Singh & Ors, V/s. Smt. Laxmi Rana & Anr. (FAO
No. 283 of 2011 dated 04th July, 2011).
Erach Boman Khavar V/s. Tukaram Shridhar Bhat and
Anr. (Civil Appeal No. 11005 of 2013 dated 12th December,
2013)
Mathura Prasad Bajoo Jaiswal & Ors. V/s. Dossibai N. B.
Jeejeebhoy (1971 AIR 2355)
Rameshkumar Agarwal V/s. Rajmala Exports Pvt. Ltd. &
Ors. (1. Civil appeal No. 3295 of 2012 dated 30th March,
2012
Nidhi V/s. Ram Kripal Sharma (D) Through Lrs. (Civil
Appeal No. 1008 of 2017 dated 07th February, 2017)
Raghu Mahton V/s. Bulak Mahton & Ors. (AIR 1953 Pat
289)
8. Ld. Advocate for the defendant argued that the plaintiff has
filed all the three applications on identical ground and therefore, the
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principles of res-judicata is applicable. Ld. Trial Court has dismissed
both applications by reasoned order and the authorities cited by the
plaintiff are not applicable. Hence the revision petition may be rejected.
:: R E A S O N S ::
AS TO POINT NOs. 1 AND 2 :
9. It is a matter of record that the plaintiff has filed
application Exhibit 14 for amendment of the plaint along with the
schedule. Said application came to be rejected by Order dt. 03rd
December, 2019. Subsequently, the plaintiff has filed second
application Exhibit 18 for amendment and he has withdrawn the same.
Thereafter, again the plaintiff has filed third application Exhibit 23 for
amendment of the plaint and same has been rejected by order dt. 20th
September, 2022. Therefore, being aggrieved by said rejection order,
the plaintiff has preferred this revision application.
10. On perusal of order dt. 20th September, 2022 passed below
Exhibit 23, it revealed that Ld. Trial Court observed in para No. 4 that
application Exhibit 14 and Exhibit 23 are in sum and substance similar
applications. As Order passed below Exhibit 14 has not been
challenged, same has been reached to the finality and therefore, Exhibit
23 is barred by Principle of Res-judicata. Therefore, it is necessary to
see the contents of both the applications in the words of the plaintiff
itself.
Sr.
No.
Para
No.
Application Exh. 14 Application Exh. 23
1 2 upto October, 2018, defendant
Nos. 2 to 4 were residing in the
suit premises. Since beginning
Some new facts.
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of October-2018, defendant
Nos. 2 and 3 were no longer
residing in the suit premises
though the suit premises
continue to be in their
possession.
3 He saw the suit premises to be
lying locked and vacate since
October-2018.
upto October, 2018,
defendant Nos. 2 to 4
were residing in the suit
premises. Since
beginning of October –
2018, defendant Nos. 2
and 3 were no longer
residing in the suit
premises though the
suit premises continue
to be in their
possession.
4 He is not aware where did
defendant Nos. 2 and 3 reside
since October – 2018.
Defendant No. 2 owns a flat in
his own name at Chembur,
however, he cannot reside
there as he has leased out said
flat.
He saw the suit
premises to be lying
locked and vacant since
October-2018.
5 After rejection of application
Exhibit 9 application for
deletion, he learned that
defendant No. 4 who is
daughter of defendant Nos. 2
and 3, Plaintiff came to know
that defendant No. 4 is
studying or working abroad.
Defendant Nos. 2 and 3 do not
provide plaintiff the address of
defendant No. 4 though
directed by the Court.
He is not aware where
did defendant Nos. 2
and 3 reside since
October-2018.
Defendant No. 2 owns a
flat in his own name at
Chembur, however, he
cannot reside there as
he has leased out said
flat.
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6 Lay man. After rejection of
application Exhibit 9
application for deletion,
he learned that
defendant No. 4 who is
daughter of defendant
Nos. 2 and 3, Plaintiff
came to know that
defendant No. 4 is
studying or working
abroad. Defendant Nos.
2 and 3 do not provide
plaintiff the address of
defendant No. 4 though
directed by the Court.
7 About future
Mesne Profits. About future
Mesne
Profits .
8 Allow the application as per
schedule annexed Exh. A.
Adding
Mesne Profits
per month at Rs. 1424/-
from the date of suit till
the recovery of vacant
possession of the suit
premises.
11. On going through the applications and the above table, it
is very much cleared that the all applications have identical contents.
However, there is no need to look in to the second application as the
same has been already withdrawn by the plaintiff. So the submission of
the plaintiff that he has moved subsequent applications on new facts
has no substance.
12. From the submissions of the parties, it is also cleared that
the trial has not been commenced at the time of filing of application
Exhibit 14. However, it is mentioned in para 7 of the order passed
below application Exhibit 14 that the plaintiff was within knowledge of
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Mesne Profits clause, it was required for the plaintiff to mention
quantum of
Mesne Profits and he has no locus to incorporate the said
clause in the prayer. Now, the question is where from and how Ld.
Trial Court came to the conclusion that the plaintiff was withing
knowledge of
Mesne Profits close. It has been also not mentioned under
which provisions, it was required for the plaintiff to quote the monthly
quantum of the
Mesne Profits, when, the plaintiff was claiming future
Mesne Profits and how the plaintiff has no locus to insert the clause of
Mesne Profits in the prayer clause. Nothing has been answered by Ld.
Trial Court about the said question and no reasons are mentioned for
the same.
13. Even, till the date of filing of third application Exhibit 23,
the trial has not been commenced and therefore, the plaintiff has every
right to amend the plaint and prayer clause because the proviso to
Order 6 Rule 17 of Code of Civil Procedure will not come in picture.
Ld. Trial Court has dismissed application Exhibit 23 by applying the
principles of Res-judicata. However, on considering the observations of
Ld. Trial Court, ration of the authorities cited by the plaintiff and the
provisions of the Law, we are of the opinion that the principles of the
Res-judicata is not applicable to these applications because all these
application are interim applications. Ld. Trial Court has not given not
reasons while dismissing application Exhibit 14 and the same have not
been decided on merit. We are of the opinion that the ratio of the
authorities cited by the plaintiff are well applicable to the case in hand.
14. It revealed from the schedule of the amendment annexed
with application Exhibit 23, the plaintiff wants to add para 6 A to 6 D in
respect of so called subsequent instances or events happened in the
month October 2018 in respect of defendant nos. 2 and 3 and another
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instance of death of defendant no. 1 happened in the year 2019. From
said contents, the plaintiff wants to bring the so called fact of non-user
of the suit premises by defendant nos. 2 and 3 on record. But the said
alleged fact is not all relevant to decide the suit because the said fact is
new fact, happened during the pendency of the suit. To prove the non-
user of the suit premises, it is for the plaintiff to prove that the
defendants were not using the suit premises for the purpose for which
it was let out to them prior to six month immediately filing of the suit.
So the alleged incident happened in the month of October 2018 is not
at all relevant to decide the suit on merit. Therefore, the plaintiff is not
entitled to carryout said amendment in the plaint in respect of the
incident which had happen during the pendency of the suit. By simple
deletion of name of defendant no. 1 from the array of the title clause of
the plaint will sufficient to bring the fact of death of defendant no. 1 on
record and for that purpose there is no need to carry out the
amendment in the pleading. Moreover, legal heirs of defendant no. 1
are already on record.
15. So far as Mesne Profits is concerned, in application Exhibit
14, the plaintiff simply prayed for future Mesne Profits and not past
Mesne Profits. While deciding application Exhibit 14, if said prayer
would be allowed by Ld. Trial Court and permitted to the plaintiff to
add clause of Mesne Profits in prayer clause, in that no prejudice would
be caused to the defendants because the defendants would have an
opportunity to file their additional written statement, cross-
examination of the plaintiff and the Court will just allow or grant the
inquiry as to Mesne Profits as per provisions of Order 20 Rule 12 of the
Code of Civil Procedure only if the suit would be decreed.
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16. To pray the inquiry as to Mesne Profits as per provisions of
Order 20 Rule 12 of the Code of Civil Procedure, there is no need to
quote the monthly quantum of Mesne Profits as considered by Ld. Trial
Court and further held that therefore, the plaintiff has no locus to add
the prayer of Mesne Profits. The said observations of Ld. Trial Court is
just a erroneous observations. As the trial has not been commenced
even till the filing of application Exhibit 23, the plaintiff is entitled to
add the prayer of Mesne Profits as per provisions of Order 20 Rule 12 of
the Code of Civil Procedure and there is no need quote the quantum
because there will be separate trial for inquiry of the Mesne Profits to
grant the quantum.
17. Considering the above discussion, we are of the opinion
that the plaintiff is just entitled to add the prayer of Mesne Profits as per
provisions of Order 20 Rule 12 of the Code of Civil Procedure and carry
out the amendment accordingly in the prayer clause. If the plaintiff
would be carried out the amendment accordingly, the defendants may
file their additional written statement only to respond the said
amendment. Hence, we answer point no. 1 in the affirmative and in
answer to point no. 2 pass the following order.
:: O R D E R ::
1 The Revision Application is partly allowed.
2 The order passed by Ld. Trial Court in respect of
amendment in the plaint is set aside.
3 The plaintiff is permitted to add the prayer of Mesne
Profits as per provisions of Order 20 Rule 12 of the Code
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of Civil Procedure and carry out the amendment
accordingly in the prayer clause.
4 The defendants may file their additional written
statement if any within stipulated period.
5 No order as to costs.
I Agree,
(M.S.Pathan) (Dinanath S. Dabhade)
Addl. Chief Judge Judge,
C.R. No. 31 C.R. No. 31
12th June, 2023 12th June, 2023
Order dictated on : 12.06.2023
Order Typed on : 12.06.2023
Order checked & signed on : 13.06.2023
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