In this case, if leave to amend is declined, the same will
lead to multiplicity. Any observation on the merits of the matter at the
stage of consideration of an application seeking leave to amend is also
not proper. All that the Petitioner seeks to do is to raise yet another
ground for seeking eviction of the Respondent. Whether such ground
bears merit or not, is ultimately a matter to be decided after the
parties have led their evidence in the matter.
8. In matters where amendment is applied prior to the
commencement of the trial, liberality is warranted. No doubt, some
prejudice is bound to occasion to the Respondents. However, the
prejudice in such a situation is not of the order which cannot be
compensated in terms of costs. This is therefore a case where the
Petitioner shall have to pay costs to the Respondents landlord
particularly now that the Petitioner will seek to lead fresh evidence in
the context of ground of nonuser.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10887 OF 2014
Vijay Dhanwatay V Messrs. Imperial Real Estate Service
CORAM : M. S. SONAK, J.
DATE : SEPTEMBER 10, 2015
1. Rule.
2. With the consent of and at the request of learned Counsel
for parties, Rule is made returnable forthwith.
3. This petition challenges orders dated 17/07/2012 and
01/10/2014 made by the Trial Court and the Revisional Court,
rejecting the Petitioner's application at Exh.65 seeking to amend the
plaint and raise the ground of nonuser of the suit premises without
any reasonable cause.
4. The application seeking leave to amend was filed on
10/05/2012 i.e. prior to the commencement of the trial with the filing
of the affidavit in lieu of examinationinchief on 11/03/2013. The
Trial Court dismissed the application on 17/07/2012, basically on the
ground that the trial had already commenced at the stage when the
application seeking leave to amend came up for consideration. The
Revisional Court, in its order dated 01/10/2014, has made reference
to the deposition of the Petitioner (PW 1) on 12/11/2013, in the
course of which he has stated to have admitted that from 24/09/1971
till the date of deposition, the Defendants are using the suit premises
for office purposes. The Revisional Court has held that in view of such
admission, there is no point in permitting leave to amend to raise the
ground of nonuser.
5. Having heard the learned Counsel for parties and perused
the record, interest of justice would require that the impugned orders
are set aside and leave to amend, as prayed for in the application at
Exh.65, is granted. In the first place, the Trial Court was not at all
right in rejecting the application on the ground that the trial had
already commenced. Admittedly, the application seeking leave to
amend was filed on 10/05/2012 and the trial commenced with the
filing of affidavit in lieu of examinationinchief by the Petitioner on
11/03/2013. Merely because the application seeking leave to amend
was considered after commencement of the trial, is by itself, no reason
to invoke the proviso to Order 6 Rule 17 of the CPC and deny leave to
amend.
6. Insofar as the so called 'admission' in deposition of the
Petitioner on 12/11/2013 is concerned, it is too premature at this
stage to style the said deposition as some sort of admission. It is to be
noted that in para 33 of the affidavit in lieu of examinationinchief,
the Petitioner had categorically stated that the suit premises are not
being used and therefore, the electric consumption of the suit flat is
shown as 'Nil' or 'Negligible'. The learned Counsel for Petitioner has
several explanations to offer with regard to the so called 'admission' in
the course of crossexamination. However, this is hardly the stage to
either consider or accept such explanations. The learned Counsel for
Petitioner is however right, that based on the so called 'admission',
there was no reason to decline leave to amend. Ultimately, even
though it may not be permissible to withdraw admissions, it is always
permissible to explain the same. Accordingly, the Appeal Court was
not right in endorsing the Trial Court and rejecting leave to amend.
7. In this case, if leave to amend is declined, the same will
lead to multiplicity. Any observation on the merits of the matter at the
stage of consideration of an application seeking leave to amend is also
not proper. All that the Petitioner seeks to do is to raise yet another
ground for seeking eviction of the Respondent. Whether such ground
bears merit or not, is ultimately a matter to be decided after the
parties have led their evidence in the matter.
8. In matters where amendment is applied prior to the
commencement of the trial, liberality is warranted. No doubt, some
prejudice is bound to occasion to the Respondents. However, the
prejudice in such a situation is not of the order which cannot be
compensated in terms of costs. This is therefore a case where the
Petitioner shall have to pay costs to the Respondents landlord
particularly now that the Petitioner will seek to lead fresh evidence in
the context of ground of nonuser. Further, it is reported that the
Petitioner has obtained order of expedition of the proceeding before
the Trial Court. There is no reason for such order to continue any
further and the suit can always be decided in its turn.
9. Accordingly, the impugned orders are set aside. Petitioner's
application at Exh.65 is allowed. Leave to amend is granted.
Amendment to be carried out within a period of two weeks from the
date of production of authenticated copy of this order before the Trial
Court. The Respondents shall be entitled to file an additional written
statement within a period of four weeks from the date of service of the
amended plaint.
10. In case, the Petitioner and the Respondents desire to
examine themselves once again, the Trial Court is requested to permit
them to do so. This, however, does not mean that the affidavits and
depositions on record can be withdrawn. The same are required to be
retained on record and taken into consideration at the stage of final
disposal of the suit. Liberty is only for the purposes of leading
additional evidence in the context of the amendment now permitted.
11. The aforesaid relief is subject to the Petitioner paying costs
of Rs.25,000/ (Rupees Twenty Five Thousand Only) within a period
of four weeks from today. In case the costs are not paid, then this
petition shall be deemed to have been dismissed.
12. The parties to appear before the Trial Court on
12/10/2015 at 11.00 a.m. and produce authenticated copy of this
order.
13. Rule is made absolute with costs to the aforesaid extent.
(M. S. SONAK, J.)
lead to multiplicity. Any observation on the merits of the matter at the
stage of consideration of an application seeking leave to amend is also
not proper. All that the Petitioner seeks to do is to raise yet another
ground for seeking eviction of the Respondent. Whether such ground
bears merit or not, is ultimately a matter to be decided after the
parties have led their evidence in the matter.
8. In matters where amendment is applied prior to the
commencement of the trial, liberality is warranted. No doubt, some
prejudice is bound to occasion to the Respondents. However, the
prejudice in such a situation is not of the order which cannot be
compensated in terms of costs. This is therefore a case where the
Petitioner shall have to pay costs to the Respondents landlord
particularly now that the Petitioner will seek to lead fresh evidence in
the context of ground of nonuser.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10887 OF 2014
Vijay Dhanwatay V Messrs. Imperial Real Estate Service
CORAM : M. S. SONAK, J.
DATE : SEPTEMBER 10, 2015
1. Rule.
2. With the consent of and at the request of learned Counsel
for parties, Rule is made returnable forthwith.
3. This petition challenges orders dated 17/07/2012 and
01/10/2014 made by the Trial Court and the Revisional Court,
rejecting the Petitioner's application at Exh.65 seeking to amend the
plaint and raise the ground of nonuser of the suit premises without
any reasonable cause.
4. The application seeking leave to amend was filed on
10/05/2012 i.e. prior to the commencement of the trial with the filing
of the affidavit in lieu of examinationinchief on 11/03/2013. The
Trial Court dismissed the application on 17/07/2012, basically on the
ground that the trial had already commenced at the stage when the
application seeking leave to amend came up for consideration. The
Revisional Court, in its order dated 01/10/2014, has made reference
to the deposition of the Petitioner (PW 1) on 12/11/2013, in the
course of which he has stated to have admitted that from 24/09/1971
till the date of deposition, the Defendants are using the suit premises
for office purposes. The Revisional Court has held that in view of such
admission, there is no point in permitting leave to amend to raise the
ground of nonuser.
5. Having heard the learned Counsel for parties and perused
the record, interest of justice would require that the impugned orders
are set aside and leave to amend, as prayed for in the application at
Exh.65, is granted. In the first place, the Trial Court was not at all
right in rejecting the application on the ground that the trial had
already commenced. Admittedly, the application seeking leave to
amend was filed on 10/05/2012 and the trial commenced with the
filing of affidavit in lieu of examinationinchief by the Petitioner on
11/03/2013. Merely because the application seeking leave to amend
was considered after commencement of the trial, is by itself, no reason
to invoke the proviso to Order 6 Rule 17 of the CPC and deny leave to
amend.
6. Insofar as the so called 'admission' in deposition of the
Petitioner on 12/11/2013 is concerned, it is too premature at this
stage to style the said deposition as some sort of admission. It is to be
noted that in para 33 of the affidavit in lieu of examinationinchief,
the Petitioner had categorically stated that the suit premises are not
being used and therefore, the electric consumption of the suit flat is
shown as 'Nil' or 'Negligible'. The learned Counsel for Petitioner has
several explanations to offer with regard to the so called 'admission' in
the course of crossexamination. However, this is hardly the stage to
either consider or accept such explanations. The learned Counsel for
Petitioner is however right, that based on the so called 'admission',
there was no reason to decline leave to amend. Ultimately, even
though it may not be permissible to withdraw admissions, it is always
permissible to explain the same. Accordingly, the Appeal Court was
not right in endorsing the Trial Court and rejecting leave to amend.
7. In this case, if leave to amend is declined, the same will
lead to multiplicity. Any observation on the merits of the matter at the
stage of consideration of an application seeking leave to amend is also
not proper. All that the Petitioner seeks to do is to raise yet another
ground for seeking eviction of the Respondent. Whether such ground
bears merit or not, is ultimately a matter to be decided after the
parties have led their evidence in the matter.
8. In matters where amendment is applied prior to the
commencement of the trial, liberality is warranted. No doubt, some
prejudice is bound to occasion to the Respondents. However, the
prejudice in such a situation is not of the order which cannot be
compensated in terms of costs. This is therefore a case where the
Petitioner shall have to pay costs to the Respondents landlord
particularly now that the Petitioner will seek to lead fresh evidence in
the context of ground of nonuser. Further, it is reported that the
Petitioner has obtained order of expedition of the proceeding before
the Trial Court. There is no reason for such order to continue any
further and the suit can always be decided in its turn.
9. Accordingly, the impugned orders are set aside. Petitioner's
application at Exh.65 is allowed. Leave to amend is granted.
Amendment to be carried out within a period of two weeks from the
date of production of authenticated copy of this order before the Trial
Court. The Respondents shall be entitled to file an additional written
statement within a period of four weeks from the date of service of the
amended plaint.
10. In case, the Petitioner and the Respondents desire to
examine themselves once again, the Trial Court is requested to permit
them to do so. This, however, does not mean that the affidavits and
depositions on record can be withdrawn. The same are required to be
retained on record and taken into consideration at the stage of final
disposal of the suit. Liberty is only for the purposes of leading
additional evidence in the context of the amendment now permitted.
11. The aforesaid relief is subject to the Petitioner paying costs
of Rs.25,000/ (Rupees Twenty Five Thousand Only) within a period
of four weeks from today. In case the costs are not paid, then this
petition shall be deemed to have been dismissed.
12. The parties to appear before the Trial Court on
12/10/2015 at 11.00 a.m. and produce authenticated copy of this
order.
13. Rule is made absolute with costs to the aforesaid extent.
(M. S. SONAK, J.)
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