1. Heard Mr. D.R. Singh, Advocate for the Petitioner and Mr. Girish Lodha, partner of the Respondent(Plaintiff) firm. Rule. By consent rule made returnable forthwith and Petition is taken up for hearing on board.
2. Original Plaintiff had filed R.A.E. Suit No. 615 of 1995 for eviction on the ground of default, permanent construction and change of user etc. Subsequently, present Respondent M/s. Sitaram Enterprises a partnership firm, was substituted in place of and instead of the original Plaintiff. The Defendant filed Written Statement on 18/7/1996 and paragraph-1 thereof indicates that the Defendant did not admit the status of the Plaintiff as owner/ landlord and the Defendant had also disputed the relationship of landlord and tenant. Various other defences were also raised. After the amendment of the plaint additional written statement was filed on 24/3/2004. Issues were framed on 3/1/2003. Additional issues were framed on 5/5/2005. Thereafter the trial commenced. The Respondent examined its partner. Cross-examination was completed. Orders regarding admissibility of documents was passed on 4/11/2009. Thereafter, the Petitioner No. 1 also filed affidavit of examination in chief on 12/7/2010 and he was cross-examined on 1/12/2010 and 6/12/2010. Thereafter the hearing was adjourned on various dates till 5/3/2011 and on 5/3/2011 the Respondent filed an Application below Exh. 62 for amendment of plaint. The Application was seeking prayer to add- paragraphs 8(a) to 8(f) in the plaint.
3. This Application was opposed by the Petitioners on various grounds. By impugned Judgment and Order dated 13/7/2011, the learned Judge of the Small Causes Court at Mumbai presiding in C.R. No. 37 in Bandra Branch had allowed the said Application for amendment giving rise to the present Writ Petition.
4. Learned Advocate for the Petitioners contends that such an amendment would be barred by the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908. In support of this submission, the learned Advocate has relied upon the Judgment of learned Single Judge at Aurangabad Bench (S.S.Shinde, J) in case of Anil Vishwanath Jadhav v/s. Pankaj Indrajeet Bassi 2010(2) Mh.L.J. 2201. Relying on the said Judgment, the learned Counsel for the Petitioners submitted that even in that case the suit was filed in the year 2001 i.e. prior to the amendment of the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 2002 and hence ratio of the said Judgment will be a binding precedent.
5. Even on merits, the learned Counsel for the Petitioners submits that the proposed amendment would entirely change the nature of suit and the same had been made at the belated stage with malafide intention. Learned Counsel also submitted that the amendment was barred by limitation since the denial of title, if any, was made known to the Plaintiff way back on 18/7/1996 when the Written Statement was filed and the Application for amendment not having been filed within 12 years therefrom, the proposed 1 2010(2) Mh.L.J. 220 amendment sought to incorporate the plea which was clearly barred by limitation.
6. Partner of the Respondent Firm is appearing in person and supported the impugned order.
7. I have considered rival submissions. At the outset, it is necessary to decide the question as to whether the bar contained in proviso of Order 6 Rule 17 of the Code, 1908 would apply. Parliament has enacted the Code of Civil Procedure (Amendment) Act, 1999 on 30 December, 1999. Section 16 of this Act reads thus :
"In the First Schedule, in Order VI,--
(i) rule 5 shall be omitted;
(ii) in rule 15, after sub-rule (3), the following sub-rule shall be inserted, namely:--
"(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.";
(iii) rules 17 and 18 shall be omitted."
8. Section 32 of this 1999 Act provides for repeal and saving. This Act was however not brought into force as it is on account of the opposition from the legal fraternity. Various changes were therefore, made in the amending Act and hence Parliament enacted the Code of C.P. (Amendment) Act, 2002 (22 of 2002) which has been brought into force from 1/7/2002 vide Notification No. S.O. 604(E) dated 6th June, 2002. By section 7 of the said Act the provisions of Order VI of the Code were amended and the Section 7 reads thus :
"7. Amendment of Order VI.-In the First Schedule, in Order VI, for rules 17 and 18 [as they stood immediately before their omission by clause (iii) of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)], the following rules shall be substituted, namely:-
"17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
18. Failure to amend after Order.-If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.".
9. Section 16 of this 2002 Act provides for repeal and savings and reads thus :
"16. Repeal and savings.-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897),-
(a) the provisions of section 102 of the principal Act as substituted by section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of section 5; and every such appeal shall be disposed of as if section 5 had not come into force;
(b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by section 7 of this Act shall n t apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act;
(c) the provisions of rule 1 of Order XX of the First Schedule as amended by section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of section 13 of this Act. "
10. From perusal of Section 16(2), it is made clear that the provisions of Rule 17 of Order VI shall not apply to or in respect of any pleadings filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the 2002 Act. It is in this context one has to consider the case in hand where the Plaintiff is seeking amendment of plaint which was filed in the year 1995. From conjoint reading of section 16 of the 1999 Amendment Act and Section 7 and 16 of 2002 Amendment Act, it is clear that the proviso will not be attracted to the facts of the present case since the suit is filed in the year 1995. In the case before the learned Single Judge in Anil Vishwanath Jadhav(supra) original Written Statement has been filed after commencement of the 2002 Act and in that context the learned Judge has held that the bar contained in proviso to Rule 17 Order VI of the Code applies. The said Judgment is therefore clearly distinguishable on facts and has no application.
11. Coming to the merits of the proposed amendment, it is no doubt true that the amendment has been moved at a very belated stage when the Defendant was undergoing cross-examination. It is possible that with view to fill up lacuna in the case or in the oral evidence, the Plaintiff might have filed this Application at the belated stage. Denial of title was made known to the Plaintiff way back in the year 1996 when the original Written Statement was filed and the amendment application was filed on 5/3/2011 is clearly beyond 12 years from the date of filing of Written Statement. The question however, remains is that as to whether in a suit for eviction in which prayer for possession is already made, amendment seeking addition of one ground can be stated to be barred by limitation or, bar of limitation will not arise because there was no addition of any prayer but only a ground of eviction was sought to be added. The learned Judge of the Trial Court should have kept this aspect in mind and ought to have made certain observations and ideally this issue ought to have been kept open for being agitated at the time of trial. This has not been done. The impugned order is otherwise a discretionary order which may not call for any interference. The second aspect which the Trial Court has overlooked is the fact that because of the impugned order prejudice would be caused to the Petitioners and it was essential to award costs for such prejudice. Even this has not been done. Hence it is necessary to interfere with the impugned Judgment and order to the limited extent (1) by keeping issue of limitation expressly open and (2) by awarding costs to the Petitioners.
12. Hence I pass following order :
(i) Rule is partly made absolute in terms of this order.
(ii)The impugned Judgment and Order dated 13/7/2011 passed in R.A.E. Suit No. 615 of 1995 by the learned Judge of the Court of Small Causes presiding in C.R. No. 37, Bandra Branch below Exh. 62 in the said Suit is not interfered with.
It is however directed that the question whether the proposed amendment seeks to incorporate the time barred claim and the question whether the Trial Court would be competent to consider the ground of denial of title or whether such a ground cannot be considered on account of a clear bar of limitation, having been raised more than 12 years after the filing of the Written Statement on 18/7/1996 is expressly kept open for being considered at the time of decision of the Suit. For that limited purpose, the Trial Court will have to frame an additional issue which will be a pure question of law and hence no additional evidence can be permitted to be led for that issue. Needless to state that the Petitioners would be at liberty to file additional Written Statement within a period of 2 months from the service of amended plaint on the defendants who are Petitioners herein. It will be open for the learned Judge of the Trial Court to decide whether the Plaintiff should be permitted to step into the witness box again or should be permitted to file affidavit of examination in chief. Defendants would however, be entitled to file additional affidavit of examination in chief as a matter of right.
(iii)The Plaintiff shall pay costs quantified at Rs. 7500/- to the Defendants being the costs for delayed application for amendment. Costs shall be paid within a period of 6 weeks from today. Payment of cost is a condition precedent for the Application Exh. 62 being allowed. If cost as aforesaid is not paid or deposited in the Trial Court, the impugned Judgment and Order will stand set aside and the Petition would stand allowed. Rule made partly absolute in the aforesaid terms.