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Citation Codes
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Case Number
Attorney(S)
  • Ms. Shakuntala A. Mudbidri
  • N.J Patil
Judges
  • A.M Khanwilkar, J.
Acts
  • provisions contained in Order VIII of the Civil Procedure Code
  • ARTICLE 227 CONSTITUTION OF INDIA
  • section 15-A of the Bombay Rent Act.
  • provisions of Bombay Rent Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Ms. Shakuntala A. Mudbidri
  • N.J Patil
Judges
  • A.M Khanwilkar, J.
Acts
  • provisions contained in Order VIII of the Civil Procedure Code
  • ARTICLE 227 CONSTITUTION OF INDIA
  • section 15-A of the Bombay Rent Act.
  • provisions of Bombay Rent Act,
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The present writ petition under Article 227 of the Constitution of India challenges an order passed by the 4th Additional District Judge, Kolhapur dated 16-12-1992 recorded below Exhibit 35 in Regular Civil Appeal No. 69 of 1992. The writ petition was admitted on 18-2-1993 and has remained pending since 1993.

Substantive background (as stated in the pleadings): the petitioner (plaintiff) instituted a suit for possession of suit premises against two defendants — Kondi Rama Dhinde (original defendant No. 1) and the respondent (original defendant No. 2). The claim was based on alleged unlawful subletting by defendant No. 1 in favour of defendant No. 2. The plaint recounts that the respondent was seen in the premises around 1968, and a notice dated 6-5-1968 was issued to Kondi Rama Dhinde; the latter replied that the respondent was present only as his agent and the plaintiff accepted that explanation. The plaint (filed in 1983) later alleges that respondent No. 2 came to be in exclusive possession only from 1983.

Procedural history up to the writ: defendant No. 1 did not contest the suit and remained ex parte; the respondent filed a written statement asserting he was the direct tenant since 1960 (introduced by one Jitkar), that he paid consideration to Jitkar for furniture/goodwill transferred to him, and that Kondi Rama Dhinde had no concern with the premises from 1960 onwards. The trial Court rejected the respondent's plea and found him in unlawful occupation, decreeing the suit for the petitioner.

The respondent filed Regular Civil Appeal No. 69 of 1992. While the appeal was pending the respondent moved an application (below Exh. 35) to amend his written statement by inserting para 13A to raise, alternatively, that even if he was inducted as sub‑tenant prior to 1-2-1973 he was protected under section 15‑A of the Bombay Rent Act. The lower Appellate Court allowed that application (the impugned order). A consequential application to amend the appeal memo (order below Exh. 36) was also made and a consequential order was passed. This writ challenges the order passed below Exh. 35 and the consequential order below Exh. 36.

Legal Issues Presented

  1. Whether the preliminary objection that the writ petition cannot proceed in the absence of Kondi Rama Dhinde (original defendant No. 1) is sustainable.
  2. Whether the lower Appellate Court erred in permitting an amendment to the written statement at the appeal stage that is inconsistent with and destructive of the earlier pleaded stand.
  3. Whether the consequential order (below Exh. 36) amending the appeal memo is sustainable if the primary order below Exh. 35 is set aside.

Arguments of the Parties

Petitioner's Arguments

  • The amendment sought by respondent would permit him to adopt a stance destructive of the specific earlier pleadings (i.e., the written statement's assertion that he was the direct tenant since 1960).
  • The amendment is inconsistent with the earlier stand, would cause irreparable prejudice to the petitioner because evidence was led on the basis of the original pleadings, and would unfairly take the petitioner by surprise at the appeal stage.
  • Reference was made to reported decisions in support of the proposition that such an amendment should not be allowed; the opinion lists these cases as relied on by the petitioner (see Table of Precedents below).

Respondent's Arguments

  • The respondent contended that amendment of the written statement is permissible at any stage (including before the Appellate Court), even if the amended stand is inconsistent, where such amendment is necessary to do justice between the parties.
  • The respondent relied on reported decisions in support of his contention that amendments of pleadings should be permitted to decide issues on merits (see Table of Precedents below).
  • At the hearing of the writ the respondent's counsel raised a technical objection that the order below Exh. 36 had remained unchallenged (not annexed to the memo), though the court observed that prayer clause (b) of the writ petition did challenge it and that Exh. 36 was consequential on Exh. 35.

Table of Precedents Cited

Precedent (as cited in the opinion) Rule or Principle Cited For (as stated in the opinion) Application by the Court (how the opinion treated the precedent)
JT 1996 (8) SC 292, Shrimoni Gurdwara Committee v. Jaswant Singh Relied upon by the petitioner's counsel to support refusal of inconsistent amendment (i.e., that amendment should not be allowed where it is destructive of earlier pleadings). The Court recorded that this decision supports the petitioner's position and that the Court's proposed view is supported by the decisions relied on by the petitioner.
(1998) 1 SCC 278, Heeralal v. Kalyan Mai Relied upon by the petitioner's counsel for the proposition that inconsistent/destructive amendments should not be permitted. The Court treated this authority as supportive of the petitioner's case.
AIR 1994 All. 99, Sant Ram Agarwal v. Civil Judge, Mohanlal Ganj Relied upon by the petitioner's counsel in support of refusing the amendment. The Court observed that this decision was among those supporting the petitioner's view and found it consistent with the outcome reached.
AIR 1994 All. 103 Relied upon by the petitioner's counsel (listed in the opinion) to support refusal of the amendment. The Court included this decision among those relied upon by the petitioner and treated the body of authorities as supporting its conclusion.
1995 Supp (3) SCC 179, Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) through L.Rs Relied upon by the respondent to support the permissibility of amendment at a later stage even if inconsistent, to do justice. The Court stated that the decisions relied upon by the respondent could be clearly distinguished on the facts and therefore did not persuade the Court in the present matter.
1995 Supp (3) SCC 577, Bakshish Singh v. Prithi Pal Singh Relied upon by the respondent for permissive approach to amendments of pleadings. The Court held that this authority was distinguishable on the facts and did not supplant the Court's reasons for disallowing the proposed amendment here.
1995 Supp (2) SCC 303 : AIR 1995 SC 1498, Akshaya Restaurant v. P. Anjanappa Relied upon by the respondent to support that amendments may be allowed to do justice even if inconsistent with earlier pleadings. The Court found the respondent's authorities distinguishable and therefore did not accept them as controlling in this case.

Court's Reasoning and Analysis

The court first addressed the preliminary objection that the writ could not proceed in the absence of Kondi Rama Dhinde (original defendant No. 1). The court rejected this objection because: (a) the objection had been raised belatedly (for the first time across the bar); (b) defendant No. 1 had proceeded ex parte at trial and had filed purshis disclaiming interest in the premises; and (c) the application which gave rise to the impugned order had been filed only by the respondent, making the respondent the only aggrieved/interest-bearing party for purposes of this petition. On that basis the court found the presence of the ex‑parte defendant unnecessary for adjudication of the writ.

Turning to the merits, the court compared the rival pleadings and evidence: the respondent's written statement consistently asserted that he was the direct tenant of the petitioner since 1960, that he was introduced by one Jitkar and had paid consideration for furniture/goodwill, and that Kondi Rama Dhinde had no concern with the premises after 1960. The trial Court, on evidence, rejected the respondent's plea and decreed the suit in favour of the petitioner.

At the appellate stage the respondent sought to amend the written statement to add an alternative plea claiming protection under section 15‑A of the Bombay Rent Act on the basis that he might have been a sub‑tenant prior to 1-2-1973. The Appellate Court allowed the amendment. The writ challenges that allowance.

The Court closely examined consistency between the original written statement and the proposed amendment. It concluded that the proposed amendment was not merely an alternative but was destructive of the original pleaded position. Key aspects of the Court's analysis were:

  • The written statement contained a specific, unequivocal case of direct tenancy from 1960; at no stage was the respondent claiming to be a sub‑tenant of defendant No. 1.
  • The proposed amendment would introduce a materially different factual basis (that respondent was a sub‑tenant prior to 1‑2‑1973) for asserting protection under the Bombay Rent Act — a position inconsistent with the trial pleadings and the factual matrix on which evidence had been led.
  • There was no foundation in the trial Court for such a new plea; no evidence had been adduced to support it; permitting the amendment at the appeal stage would unfairly take the petitioner by surprise and cause irreparable prejudice.
  • The Court invoked the requirements of Order VIII of the Civil Procedure Code concerning contents of the written statement, noting that the respondent had an obligation to set out his case then; having filed a specific earlier stand, he could not approbate and reprobate or deviate belatedly in the guise of an "alternative" plea.
  • The Court considered the authorities cited by both sides and concluded that the decisions relied upon by the petitioner supported the Court's view, while the authorities relied upon by the respondent were distinguishable on the facts of the present case.

On the technical point regarding Exh. 36 (the consequential order amending the appeal memo), the Court observed that even if Exh. 36 was not originally annexed to the memo, prayer clause (b) challenged the consequential order and that Exh. 36 necessarily depended on and flowed from the order below Exh. 35; hence if Exh. 35 was unsustainable Exh. 36 would also fail.

Holding and Implications

Core Holding: Writ petition allowed; the impugned order passed below Exhibit 35 dated 16-12-1992 is set aside and the consequential order below Exhibit 36 is also set aside.

Implications and immediate consequences:

  • Direct effect on the parties: the amendment permitted by the Appellate Court (inserting para 13A to raise protection under section 15‑A of the Bombay Rent Act) is annulled; the respondent may not proceed in the appeal on the basis of that belated, inconsistent plea introduced by the amendment.
  • The rule was made absolute and costs were awarded (the opinion states "Rule made absolute with costs").
  • Practical direction: the District Judge was directed to expeditiously dispose of Regular Civil Appeal No. 69 of 1992 (the pending appeal) and preferably within three months from receipt of the writ of the High Court.
  • No broad new legal precedent beyond the reasoning in this opinion is articulated; the Court relied on existing authorities and distinguished those relied upon by the respondent. The opinion's effect is to reaffirm that materially inconsistent or "destructive" amendments to pleadings (which would take the other party by surprise and where no foundation was laid at trial) should not be permitted at the appellate stage.

Final order as recorded in the opinion: "Writ petition allowed."

Show full summary ...

    Balu Appaji Sangonkar v. Rangrao Dattoba Palkar .

    1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the 4th Additional District Judge, Kolhapur dated 16-12-1992 below Exhibit 35 in Regular Civil Appeal No. 69 of 1992.

    2. The preliminary objection raised on behalf of the respondent is that this writ petition cannot proceed in absence of Kondi Rama Dhinde, original defendant No. 1. This objection is however, being raised for the first time across the bar. This writ petition has remained pending since 1993, for it was admitted as back as on 18-2-1993. Admittedly, the respondent did not file any reply affidavit or a formal application raising this preliminary objection, but the same was raised only when the Court was about to dictate the judgment after hearing both the Counsel on merits. In any case I find no force in the preliminary objection. In my view the presence of Kondi Rama Dhinde, original defendant No. 1, is not essential or necessary for the adjudication of this petition. It is relevant to point out that, admittedly, the suit proceeded ex parte against the said Kondi Rama Dhinde, original defendant No. 1. Moreover, the said Kondi Rama Dhinde, original defendant No. 1, filed purshis before the trial Court that he had no concern with the suit premises and he is not interested in contesting the suit. Accordingly, the suit proceeded ex parte against the said Kondi Rama Dhinde, original defendant No. 1. Besides this, the application on which the impugned order has been passed by the Court below was taken out by the respondent herein only. The respondent has prayed for amendment of the written statement as well as the appeal Memo pending before the appeal Court. Accordingly, it is only the respondent herein who can be said to be the interested and contesting party and would be the only aggrieved party if the order passed below Exh. 35 is to be reversed or modified in any manner. As such the presence of Kondi Rama Dhinde, original defendant No. 1, cannot be said to be essential or necessary. Therefore I have no hesitation in rejecting the preliminary objection raised on behalf of the respondent.

    3. Coming to the merits of the case, the petitioner plaintiff instituted suit against the respondent-original defendant No. 2 and said Kondi Rama Dhinde, original defendant No. 1, for possession of the suit property mainly on the ground of unlawful subletting of the suit premises in favour of the respondent-defendant No. 2. The averments in the plaint, which was produced before this Court, indicate that the petitioner went to the Court with specific case that the respondent herein was seen in the suit premises sometime in 1968 when the petitioner issued notice dated 6-5-1968 to the said Kondi Dhinde, original tenant defendant No. 1, calling upon him to explain the circumstances. The petitioner's case in the plaint is that in response to the said notice the said Kondi Rama Dhinde, original defendant No. 1, replied that respondent herein defendant No. 2, was in the premises only as his agent and in no other capacity and that the petitioner verified the said fact and was satisfied with this reply. The plaint, filed in the year 1983, further asserts that recently it was noticed that the defendant No. 2 - respondent herein was seen in exclusive possession of the suit premises and defendant No. 1 had presumably left the suit premises by unlawfully sub-letting the same to the respondent herein. Thus the plaint, at best admits of the exclusive possession of the respondent as sub tenant only from 1983. In this background the petitioner maintained the suit against the defendants.

    4. As mentioned earlier, Kondi Rama Dhinde, original defendant No. 1, did not contest the suit and allowed the same to go ex parte, whereas respondent herein filed his written statement. In para 3 of his written statement there is vague and general denial of the averments made in paras 4 to 8 of the plaint. Further, the respondent has taken a specific plea that one Jitkar was running hotel in the suit premises in the name and style of Mangal Vishranti Griha in the year 1960; and the said Mr. Jitkar inducted the respondent in the suit premises and also introduced him to the petitioner landlord, who in turn accepted the respondent as his direct tenant in the suit premises. Thus, a specific stand is taken in the written statement that the respondent herein was occupying the suit premises in his own right since year 1960 as tenant thereof. In para 7 of the written statement it is further averred by the respondent that between 1960 and 12-11-1965 - furniture, goodwill and other articles in the suit premises were owned by the said Krishna Jitkar; and for the use thereof the respondent was paying consideration to the said Jitkar and that by agreement the said Jitkar has made over the furniture and goodwill in favour of the respondent. Besides this in para 8 of the written statement the respondent has also categorically averred that from 1960 till the filing of the written statement, Kondi Rama Dhinde had no concern whatsoever with the suit premises. The substance of the stand taken in the written statement was that defendant No. 1 had no concern with the suit premises and that the respondent was the direct tenant of the petitioner landlord since 1960.

    5. In the backdrop of the abovesaid rival stand, the matter went to the trial. The trial Court after scrutinizing the evidence on record negatived the stand taken by the respondent defendant No. 2. The trial Court rejected the plea of the respondent that he was inducted as tenant by the petitioner in the suit premises since 1960. The trial Court further proceeded to record a clear finding that the respondent was in unlawful occupation of the suit premises. Therefore, the Court decreed the suit in favour of the petitioner.

    6. Against this decision, the matter has been taken in appeal before the District Court. The respondent filed appeal being Regular Civil Appeal No. 69 of 1992. After filing the said appeal, the respondent, for the first time took out application below Exh. 35 praying for permission to amend the written statement by inserting para 13A therein. By the proposed amendment the respondent wanted to raise an alternative plea that even assuming that the respondent was inducted as the sub tenant by the defendant No. 1 prior to 1-2-1973 even then the respondent was protected by virtue of section 15-A of the Bombay Rent Act. This application has been allowed by the lower Appellate Court by the impugned order.

    7. The basis on which the said application has been allowed is mainly that the proposed amendment was not inconsistent with the earlier stand taken by the respondent and that if the amendment was allowed it would facilitate the Court to arrive at a proper conclusion and that it was based on legal question. This order has been taken exception to in the present writ petition.

    8. In the writ petition, the petitioner has challenged the orders passed below Exh. 35 as well as Exh. 36, both dated 18-12-1992. However, the order which has been placed along with the writ petition, being Exh. C to the writ petition, is passed below Exh. 35. In other words, order below Exh. 36 is not on record of this petition, but the same was produced at the time of hearing of this writ petition. The correctness of the said order below Ex. 36 produced before this Court is not doubted. It is not in dispute that the application below Exh. 36 is placed on record, being Exh. B to the writ petition, which is at page 9 of the paper book. By the said application the respondent wanted to carry out consequential amendment in the appeal memo which was pending before the Appellate Court. Therefore, order below Ex. 36 is only a consequential order to the one which was passed below Exh. 35.

    9. The learned counsel for the respondent raised a technical objection that the order below Exh. 36 has remained unchallenged, for it is not annexed to the memo of petition. However, the learned Counsel is not in a position to dispute that prayer clause (b) of the writ petition challenges the said order passed below Ex. 36 as well. Thus order below Ex. 36 is also subject matter of challenge in this writ petition. The objection raised at the hearing of this petition across the bar over-looks that if the order below Exh. 35 is held to be unsustainable, the consequential order below Ex. 36, which is rested on order below Exh. 35, will naturally fail and cannot be allowed to stand.

    10. The learned counsel for the petitioner chiefly contends that the amendment permits the respondent to take a stand which would be destructive of his earlier stand taken in the written statement. It is argued that the proposed amendment besides being inconsistent, but would also cause irreparable prejudice to the petitioner having regard to the fact that both the parties have led evidence on the basis of pleadings which were on record at the relevant point of time. The learned counsel for the petitioner, to buttress her submission relied upon the following reported decisions:

    (1) JT 1996 (8) SC 292, Shrimoni Gurdwara Committee v. Jaswant Singh.. (2) (1998) 1 SCC 278, Heeralal v. Kalyan Mai (3) AIR 1994 All. 99, Sant Ram Agarwal v. Civil Judge, Mohanlal Ganj (4) AIR 1994 All. 103.

    11. On the other hand, the learned Counsel for the respondent contends that it was permissible for the respondent to carry out amendment to the written statement at any stage, including before the appeal Court and that too even when the stand is inconsistent with the earlier stand; and such amendment will have to be granted to do justice to the parties. In support of his submission reliance has been placed on the following decisions;

    (1) 1995 Supp (3) SCC 179, Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) through L.Rs (2) 1995 Supp (3) SCC 577, Bakshish Singh v. Prithi Pal Singh (3) 1995 Supp (2) SCC 303 : AIR 1995 SC 1498, Akshaya Restaurant v. P. Anjanappa.

    12. Having considered the rival submissions and upon perusing the original pleadings viz. plaint and written statement as well as the proposed amendment, I find no hesitation in recording that the Court below was completely in error in concluding that the proposed amendment would be consistent with the stand already taken by the respondent. However, I am of the considered view that the proposed amendment would not only be inconsistent with the earlier stand taken by the defendant, but is destructive of the same. I am persuaded to take this view, for the stand which was taken in the written statement was very specific that the respondent was the direct tenant of the petitioner. At no stage did the respondent assert that he was claiming through the defendant No. 1. On the other hand his categorical case was that he was inducted in the suit premises after he was introduced by one Jitkar to the petitioner in the year 1960 and since then the petitioner had accepted him to be his tenant. This plea, in my view, is not only inconsistent with the new plea raised in the proposed amendment, but if the proposed amendment is allowed it would be clearly destructive of the original plea. Inasmuch as, by the proposed amendment, the respondent, for the first time, wants to assert that he was in possession of the suit premises prior to 1-2-1973 in the capacity of sub tenant of the defendant No. 1. There is perceptible difference between the stand taken in the original written statement and one suggested in the proposed amendment. No doubt the proposed amendment seeks to raise an alternative plea, but such an alternative plea if permitted would be totally destructive to the original stand. Moreover there is no foundation laid in the trial Court to permit such a new plea. Besides that it would take the petitioner/plaintiff by surprise in the appeal. The respondent cannot be allowed to take advantage of some averment in the plaint and succeed in this manner. There is nothing on record to show that the respondent was in occupation of the suit premises as licensee of the original tenant Kondi Rama Dhinde, original defendant No. 1. To set up a claim of having protection under the provisions of Bombay Rent Act, the licensee must show that he had a subsisting license on the relevant date. On the other hand, the stand taken by the respondent all throughout the trial has been that the respondent was paying rent directly to the petitioner and was the direct tenant of the petitioner, respondent, therefore, cannot be allowed to approbate and reprobate or allowed to deviate from the earlier stand in the garb of an alternative plea that he is the licensee of defendant No. 1 especially when he had failed to categorically deny the case made out by the plaintiff and having admitted that the defendant No. 1 had no concern with the suit premises after 1960. The view that I propose to take, the same is supported by the decisions relied by the Counsel for the petitioner. Whereas the decisions relied upon by the respondent can be clearly distinguished, for, in the present case I have no hesitation in concluding that if the proposed amendment is allowed it would permit the respondent defendant No. 2 to raise a plea which would be destructive of the original stand taken in the written statement on the basis of which parties went to the trial. Moreover it would cause irreparable prejudice to the petitioner herein, inasmuch as by the proposed amendment, the respondent has for the first time asserted that he is in possession of the suit premises prior to 1-2-1973 as a licensee of the defendant No. 1. If the respondent wanted to take this stand, it was incumbent upon him to do so in view of the express provisions contained in Order VIII of the Civil Procedure Code with regard to the contents of the written statement. The respondent having filed general and vague written statement while replying to the assertions in the plaint and at the same time took a specific stand, now the respondent cannot be permitted to take the petitioner by surprise on the stand on which no evidence has been adduced by either party before the trial Court. Such an amendment, at the appeal stage, would be wholly inappropriate and ought not to be permitted in the interest of justice.

    13. The learned counsel for the respondent however contends that since the parties have acted upon the impugned order by carrying out necessary amendment in the records, the Court should not entertain this writ petition, I am afraid, this contention is totally misconceived and ill advised. The amendment, even if carried out in the records, is obviously subject to the outcome of this proceeding. Merely because the same has been carried out in the record that would not preclude this Court from adjudicating the propriety and efficacy thereof. In the circumstances, this contention raised by the respondent is devoid of merits.

    14. For the aforesaid reasons this writ petition succeeds and the impugned order passed below Exh. 35 in civil appeal No. 69 of 1992 dated 16-12-1992 is set aside. The consequent order passed by the Court below Exh. 36, therefore, is also set aside. Rule made absolute with costs.

    15. At this stage it is pointed out that Civil appeal which has been filed before the appeal Court is pending since 1993. The district Judge is therefore directed to expeditiously dispose of the said appeal and preferably within three months from the receipt of the writ of this Court.

    16. Parties to act on the copy of this order duly authenticated by Sheristedar of the Court.

    Writ petition allowed.
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    Comments

    Balu Appaji Sangonkar v. Rangrao Dattoba Palkar .
    (Feb 9, 2001)