Case Note & Summary
The dispute pertains to a suit for eviction filed by the original Plaintiff, Joanita Braganza, against the original Defendant, Stanislaus J.T. D'Souza, in respect of a flat in Mumbai. The Plaintiff claimed bonafide requirement and non-payment of rent. The Defendant contested the suit. After the trial was almost concluded and evidence was recorded, the Defendant filed an application for amendment of the written statement and for appointment of a Commissioner. The proposed amendment sought to add pleadings that the Plaintiff's alternative accommodation at Byculla was actually a two-bedroom flat, that the Plaintiff's son Anaclet and his family were residing elsewhere, and that greater hardship would be caused to the Defendant. The Trial Court rejected the application, and the Appellate Bench of the Small Causes Court dismissed the Civil Revision Application. The High Court, in a petition under Article 227, upheld the rejection, holding that the amendment was sought at the fag end of the trial, would change the nature of the defence, and would cause prejudice to the Plaintiff. The Court also noted that the issue of hardship was already pleaded, and the appointment of a Commissioner was not necessary. The petition was dismissed.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Amendment at fag end of trial - The Defendant sought to amend the written statement after evidence was concluded to incorporate new facts regarding the Plaintiff's alternative accommodation and hardship. The Court held that such amendment would change the nature of defence and cause prejudice to the Plaintiff, and was not permissible at that stage. (Paras 6-10)
B) Civil Procedure - Appointment of Commissioner - Order XXVI Rule 9 CPC - The Defendant sought appointment of a Commissioner to inspect the Plaintiff's premises. The Court held that the application was filed belatedly and was an attempt to gather evidence after the trial had concluded, and thus was rightly rejected. (Paras 11-12)
C) Rent Control - Bonafide Requirement - Hardship - The Defendant's proposed amendment regarding hardship was already pleaded in the written statement, and the new facts sought to be added were not necessary for deciding the issue. The Court found no error in the rejection of the amendment. (Paras 8-10)
Issue of Consideration
Whether the Appellate Bench of the Small Causes Court erred in dismissing the Civil Revision Application and confirming the rejection of the application for amendment of written statement and appointment of Commissioner.
Final Decision
The High Court dismissed the Writ Petition, upholding the orders of the Trial Court and the Appellate Bench rejecting the application for amendment of written statement and appointment of Commissioner.
Law Points
- Amendment of pleadings at fag end of trial
- Order VI Rule 17 CPC
- Prejudice to opposite party
- Change in nature of defence
- Bonafide requirement
- Hardship
- Appointment of Commissioner
Case Details
2022 LawText (BOM) (11) 49
WRIT PETITION NO. 2587 OF 2021
Smt. Anuja Prabhudessai, J.
Mr. Vishwajit P. Sawant, Sr. Advocate a/w. Mr. Prabhakar M. Jadhav for the Petitioners; Mr. Rajendra Thakkar a/w. Ms. Pooja Thakkar for the Respondents.
Mrs. Katherine Anne D'Souza and ors.
Mr. Federick Cyril Braganza and anr.
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging the order of the Appellate Bench of the Small Causes Court dismissing the Civil Revision Application and confirming the rejection of the application for amendment of written statement and appointment of Commissioner in an eviction suit.
Remedy Sought
The Petitioners (legal representatives of the original Defendant) sought to set aside the impugned orders and allow the amendment of the written statement and appointment of a Commissioner.
Filing Reason
The Petitioners were aggrieved by the rejection of their application for amendment of the written statement and appointment of a Commissioner, which they claimed was necessary to bring on record new facts regarding the Plaintiff's alternative accommodation and hardship.
Previous Decisions
The Trial Court (Small Causes Court, Mumbai) rejected the application for amendment and appointment of Commissioner on 16/11/2019. The Appellate Bench of the Small Causes Court dismissed the Civil Revision Application No.35 of 2020 on 10/02/2020, confirming the Trial Court's order.
Issues
Whether the amendment of the written statement sought at the fag end of the trial was permissible under Order VI Rule 17 CPC?
Whether the appointment of a Commissioner was necessary and justified at that stage?
Submissions/Arguments
The Petitioners argued that the amendment was necessary to bring on record subsequent events and to avoid multiplicity of proceedings, and that no prejudice would be caused to the Respondents.
The Respondents argued that the amendment was sought belatedly after the trial had concluded, would change the nature of the defence, and would cause prejudice to the Plaintiff.
Ratio Decidendi
An amendment of pleadings sought at the fag end of the trial, after evidence has been concluded, which would change the nature of the defence and cause prejudice to the opposite party, is not permissible under Order VI Rule 17 CPC. The court must consider the stage of the proceedings and the prejudice likely to be caused.
Judgment Excerpts
This Petition under Article 227 has been filed assailing order dated 10/02/2020 whereby learned Appellate Bench, Small Causes Court dismissed the Civil Revision Application No.35 of 2020 and thereby confirmed the order dated 16/11/2019 passed by learned Small Causes Court, Mumbai rejecting Application for amendment of written statement and appointment of Commissioner.
The Defendant filed an application for amendment of the written statement and for appointment of Commissioner. By the proposed amendment, as contained in the Schedule, the Defendant has sought to incorporate pleadings that the Plaintiff has falsely alleged that the premises at Byculla is of one bedroom, hall, kitchen and that it is not sufficient to accommodate her and her family, when in fact the premises at Byculla comprise of two bedrooms, hall and kitchen.
Procedural History
The original Plaintiff filed a suit for eviction in 1994. Issues were framed on 27/11/2003. Evidence of both sides was recorded. At the fag end of the trial, the Defendant filed an application for amendment of written statement and appointment of Commissioner. The Trial Court rejected the application on 16/11/2019. The Defendant filed Civil Revision Application No.35 of 2020 before the Appellate Bench of the Small Causes Court, which was dismissed on 10/02/2020. The Petitioners then filed the present Writ Petition under Article 227 before the High Court, which was dismissed on 17/11/2022.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VI Rule 17, Order XXVI Rule 9, Article 227
