Case Note & Summary
The matter arose from a rent eviction dispute concerning a residential house in Panaji, Goa. The petitioners, owners of landed property bearing Chalta Nos.24, 24A, 24B and 24C of P.T. Sheet No.109 of City Survey, Panaji, leased a larger portion of the suit premises to one Pandurang Mahatme at a monthly rent of Rs.350. In 1998, the petitioners filed eviction proceedings against Pandurang, alleging that he had sub-let an 18 square metre rear portion to Ramesh Moraskar without consent. After Pandurang's death, his widow was brought on record, and the sub-tenant Ramesh Moraskar was added as a party. The sub-tenant filed a written statement claiming he was residing in the room with the consent, knowledge and authority of the petitioners as a statutory tenant and was paying monthly rent of Rs.50 to Pandurang as per instructions. The trial court framed issues, including whether the rear portion had been sub-let without knowledge and consent, and answered it in the affirmative. By judgment and order dated 25.11.2021, the trial court decreed eviction against the respondents. Aggrieved, respondent no.1 filed Rent Appeal No.15/2023/FTC-1. During the pendency of the appeal, respondent no.1 filed an application Exhibit D-25 dated 25.02.2025 seeking amendment of the written statement to introduce a plea of Mundkarship under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. The petitioners opposed the amendment. The Ad-hoc District Judge, Merces, Goa, by order dated 30.06.2025, allowed the application. The petitioners challenged that order in the present writ petition before the High Court of Bombay at Goa. The core legal issue was whether the appellate court erred in permitting amendment of the written statement at the appellate stage to plead Mundkarship when the original defence was statutory tenancy and the plea of tenancy had already been rejected. The petitioners argued that the proposed amendment was mutually destructive, amounted to withdrawal of an admission of tenancy, was belated, and would cause serious prejudice, especially because the litigation had been pending since 1998. They relied on S. Malla Reddy and Mitra Archdiocese of Goa and Daman. Respondent no.1 contended that defendants are entitled to take new or inconsistent defences by amendment, relying on Baldev Singh, Pandit Ishwardas, Raj Kumar Bhatia, Usha Babaseheb Swami, and Shantaram Babani Xete Curtorkar. The High Court analysed Section 2(p) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, which expressly excludes a person paying rent to the bhatkar from the definition of Mundkar. The court observed that a tenant can never be a Mundkar and that pleas of tenancy and Mundkarship are mutually destructive. It further noted that the respondent had categorically admitted tenancy and payment of rent in the written statement, and after the trial court rejected that defence, the respondent could not be allowed to introduce an entirely inconsistent plea by amending the written statement. The court also found that the amendment sought at the appellate stage would cause serious prejudice to the petitioners, who had been litigating for decades. Relying on S. Malla Reddy, the court held that a party cannot be permitted to resile from admissions made in the written statement, particularly after the hearing has commenced. Accordingly, the High Court held that the appellate court erred in allowing the amendment and set aside the impugned order. The writ petition was allowed, and the rule was made absolute.
Headnote
A) Civil Procedure - Amendment of Written Statement - Order VI Rule 17, Code of Civil Procedure, 1908 - Impermissible to introduce mutually destructive plea at appellate stage - Respondent no.1 originally pleaded statutory tenancy and payment of rent; after eviction decree, sought amendment to plead Mundkarship; such plea contradicted original admission and amounted to withdrawal of admission - Held that appellate court erred in allowing amendment, as it would permit respondent to resile from categorical admission and cause prejudice; writ petition allowed (Paras 8, 11-13). B) Goa Mundkar Law - Definition of Mundkar - Section 2(p), Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - Person paying rent to bhatkar excluded - The statute excludes a person paying rent to the bhatkar from the definition of Mundkar; hence a tenant cannot simultaneously claim Mundkarship - Held that pleading both statutory tenancy and Mundkarship was mutually destructive and impermissible (Paras 9-10, 13). C) Civil Procedure - Withdrawal of Admissions - Order VI Rule 17, Code of Civil Procedure, 1908 - No amendment to resile from admissions after trial commenced - The trial court had tested and rejected the tenancy plea; permitting amendment would allow respondent to withdraw admission of payment of rent and start second innings - Held that proposed amendment was barred, relying on S. Malla Reddy and Mitra Archdiocese of Goa and Daman (Paras 11-12). D) Civil Procedure - Amendment at Appellate Stage - Prejudice and Delay - Order VI Rule 17, Code of Civil Procedure, 1908 - Amendment sought after long litigation and adverse trial finding causes serious prejudice - Litigation originated in 1998, eviction suit decreed in 2021, and amendment sought in 2025 - Held that allowing amendment at belated stage would cause serious prejudice to petitioners and was rightly disallowed; appellate order set aside (Paras 6, 13).
Issue of Consideration
Whether the appellate court erred in allowing amendment of the written statement at the appellate stage to introduce a plea of Mundkarship that was inconsistent with the earlier plea of statutory tenancy and involved withdrawal of an admission, particularly when the plea of tenancy had already failed before the trial court.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 30.06.2025, and made the rule absolute, thereby disallowing the amendment of the written statement sought by respondent no.1.
Law Points
- Amendment of written statement cannot introduce mutually destructive plea
- Statutory tenancy and Mundkarship are mutually exclusive
- Person paying rent to bhatkar excluded from definition of Mundkar
- Defendant cannot resile from admission after trial commenced
- Belated amendment causing prejudice not permissible
