Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors. - Court Judgment

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
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			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
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		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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			'court' => 'Mumbai',
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			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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			'id' => '368315',
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			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2005(4)ALLMR171',
			'ratiodecidendi' => '',
			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'mr-fernando-sequeira-lobo-vs-coelho-pereira',
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		(int) 0 => '368315',
		(int) 1 => 'mr-fernando-sequeira-lobo-vs-coelho-pereira'
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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			'id' => '368315',
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			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
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			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
		'ratiodecidendi' => '',
		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
		'link' => null,
		'circuit' => null
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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => '',
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2005(4)ALLMR171',
			'ratiodecidendi' => '',
			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
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			'circuit' => null
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	'casename_url' => 'mr-fernando-sequeira-lobo-vs-coelho-pereira',
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		(int) 0 => '368315',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '2005(4)ALLMR171',
		'ratiodecidendi' => '',
		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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N.A. Britto, J.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
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	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
)
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1. Rule. By consent heard forthwith.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
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		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2005(4)ALLMR171',
			'ratiodecidendi' => '',
			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2005(4)ALLMR171',
			'ratiodecidendi' => '',
			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mr-fernando-sequeira-lobo-vs-coelho-pereira',
	'args' => array(
		(int) 0 => '368315',
		(int) 1 => 'mr-fernando-sequeira-lobo-vs-coelho-pereira'
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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			'court' => 'Mumbai',
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			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
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	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
)
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6. Section 21 of the Act reads as follows :-

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
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	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2005(4)ALLMR171',
		'ratiodecidendi' => '',
		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
)
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21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2005(4)ALLMR171',
		'ratiodecidendi' => '',
		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2005(4)ALLMR171',
			'ratiodecidendi' => '',
			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mr-fernando-sequeira-lobo-vs-coelho-pereira',
	'args' => array(
		(int) 0 => '368315',
		(int) 1 => 'mr-fernando-sequeira-lobo-vs-coelho-pereira'
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
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			'court' => 'Mumbai',
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			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
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	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
)
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The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
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		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2005(4)ALLMR171',
		'ratiodecidendi' => '',
		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
)
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10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2005(4)ALLMR171',
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			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
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		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
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		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.

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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2005(4)ALLMR171',
			'ratiodecidendi' => '',
			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'mr-fernando-sequeira-lobo-vs-coelho-pereira',
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		(int) 0 => '368315',
		(int) 1 => 'mr-fernando-sequeira-lobo-vs-coelho-pereira'
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
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		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
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		'circuit' => null
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
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	'title_for_layout' => 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368315',
			'acts' => '',
			'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
			'appellant' => 'Mr. Fernando Sequeira Lobo',
			'authreffered' => '',
			'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
			'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
			'caseanalysis' => null,
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			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '2005-02-10',
			'deposition' => 'Petition dismissed',
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			'judge' => ' N.A. Britto, J.',
			'judgement' => '<p style="text-align: justify;">N.A. Britto, J.</p><p style="text-align: justify;">1. Rule. By consent heard forthwith.</p><p style="text-align: justify;">2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p style="text-align: justify;">3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p style="text-align: justify;">4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p style="text-align: justify;">5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p style="text-align: justify;">6. Section 21 of the Act reads as follows :-</p><p style="text-align: justify;">21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p style="text-align: justify;">7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p style="text-align: justify;">8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p style="text-align: justify;">9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p style="text-align: justify;">The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p style="text-align: justify;">10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p style="text-align: justify;">11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p style="text-align: justify;">Expedite authenticated copy.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2005(4)ALLMR171',
			'ratiodecidendi' => '',
			'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
			'sub' => 'Tenancy;Constitution',
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			'circuit' => null
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	'casename_url' => 'mr-fernando-sequeira-lobo-vs-coelho-pereira',
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		(int) 0 => '368315',
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$title_for_layout = 'Mr Fernando Sequeira Lobo Vs Mr Jose E Coelho Pereira and ors - Citation 368315 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368315',
		'acts' => '',
		'appealno' => '  Writ Petition Nos. 587 and 588 of 2004',
		'appellant' => 'Mr. Fernando Sequeira Lobo',
		'authreffered' => '',
		'casename' => 'Mr. Fernando Sequeira Lobo Vs. Mr. Jose E. Coelho Pereira and ors.',
		'casenote' => '(A) Constitution of India, 1950 - Articles 226, 227 - Certiorari or supervisory jurisdiction of High Court - Interference only when the error committed is manifest and apparent on the record or grave injustice or failure of justice has occasioned thereby and not for correcting mere errors of fact or law.; This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. ;(B) Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Act, 1968 - Sections 22(b)(i) and (ii), 22(2)(g) - Eviction of tenant - Eviction proceedings by landlord - Tenant taking plea of permanent tenancy - Application by tenant for withdrawal of the ground of permanent tenancy - Amendment which would displace the landlords from the new ground of eviction by virtue of earlier amendment application of the tenant cannot be allowed.;The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period often years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the Rent Controller in adjourning the proceedings for one reason or the other. An amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.  - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '2005-02-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' N.A. Britto, J.',
		'judgement' => '<p>N.A. Britto, J.</p><p>1. Rule. By consent heard forthwith.</p><p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.</p><p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.</p><p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.</p><p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.</p><p>6. Section 21 of the Act reads as follows :-</p><p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.</p><p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.</p><p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .</p><p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-</p><p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.</p><p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.</p><p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.</p><p>Expedite authenticated copy.<p></p><p>',
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		'pubs' => '2005(4)ALLMR171',
		'ratiodecidendi' => '',
		'respondent' => 'Mr. Jose E. Coelho Pereira and ors.',
		'sub' => 'Tenancy;Constitution',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mr-fernando-sequeira-lobo-vs-coelho-pereira'
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	(int) 0 => '368315',
	(int) 1 => 'mr-fernando-sequeira-lobo-vs-coelho-pereira'
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	(int) 0 => '<p>N.A. Britto, J.',
	(int) 1 => '<p>1. Rule. By consent heard forthwith.',
	(int) 2 => '<p>2. By these petitions filed under Article 227 of the Constitution, the petitioner tenant questions the legality of the order dated 23.7.2004 of the Rent Controller, Panaji as upheld by the Administrative Tribunal by order dated 10.12.04, dismissing the tenant's application for amendment of his written statement to enable him to withdraw the plea of permanent tenancy taken by him earlier by amending his written statement in proceedings filed by the respondents landlords for his eviction.',
	(int) 3 => '<p>3. The respondents who are the landlords had filed eviction proceedings for the eviction of the said tenant in respect of two floors of their building known as 'Hotel Imperial' having Matriz No. 336 under Section 22(2)(b)(i) and (ii) of the G.D.D. Buildings (L.R.E.) Act, 1968 (Act, for short) and a written statement was filed by the tenant on or about 16.12.1991 denying the case of the landlords.',
	(int) 4 => '<p>4. On or about 7.7.93 the tenant filed an application for amendment of written statement stating that it would be in the interest of justice to allow the tenant to amend the written statement. By virtue of the said amendment application the tenant stated that he had purchased the establishment functioning in the said premises by means of sale deed on 29.4.58 and in view of that the tenant was claiming right of permanent tenancy to the suit premises and consequently the Court had no jurisdiction to entertain the said dispute. The said plea having been taken by the tenant, inquiry was started in the year 1994 or thereabout under Section 21 of the Act. When the said inquiry was about to conclude the landlords moved an amendment application for eviction of the tenant to incorporate an additional ground of eviction in the light of the claim of permanent tenancy claimed by the said tenant being mala fide and for handing over vacant possession of the suit premises. Presumably the said amendment application was filed in the light of what has been stated by the Apex Court in the case of J.J. Lal Put. Ltd. and Ors. v. M.R. Murali and Anr. : [2002]1SCR919 On or about 27.12.1999 the Rent Controller allowed the application for amendment of the landlords and while disposing of the inquiry under Section 21 of the Act ordered the eviction of the petitioner tenant by concluding that the claim of permanent tenancy taken by the tenant was mala fide. It appears that the tenant approached the Administrative Tribunal against the said order of the Rent Controller dated 27.12.99 and the Administrative Tribunal was pleased to remand the matter for a fresh decision in the said inquiry under Section 21 of the Act. The landlords filed a review application before the Administrative Tribunal which was dismissed on 2.12.2003. The landlords being dissatisfied, approached this Court in W.P. No. 651/2003 which was dismissed by order dated 29.1.04 giving liberty to the landlords to file an application for amendment in the event the Rent Controller decided that the claim of permanent tenancy was mala fide.',
	(int) 5 => '<p>5. It appears that on 25.3.04 the Rent Controller refused an opportunity to the tenant to be heard orally as written submissions were filed by both the parties which were on record and fixed the case on 14.6.04. Against the said order dated 25.3.04 the tenant filed revision applications before the Administrative Tribunal which the learned Administrative Tribunal was pleased to allow giving the parties an opportunity to advance oral arguments and dispose of the inquiry within 30 days. While the case was pending for oral arguments in the said inquiry under Section 21 of the Act that the tenant on or about 14.6.04 moved the application for amendment of the written statement to withdraw the said claim of permanent tenancy which was objected to by the landlords and which, as already stated, came to be dismissed by the Rent Controller on 23.7.04.',
	(int) 6 => '<p>6. Section 21 of the Act reads as follows :-',
	(int) 7 => '<p>21. Bar on eviction of tenants.- Notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Chapter :Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.',
	(int) 8 => '<p>7. The learned Administrative Tribunal has observed that a right had accrued in favour of the landlords in terms of Section 22 (2) (g) of the Act by claiming permanent tenancy and that after inquiry was initiated, after the first amendment more than a decade had passed and that the tenant by the proposed amendment was trying to give a go-bye to the inquiry conducted under Section 21 of the Act and thus allowing the amendment would amount to non-suiting the respondents.',
	(int) 9 => '<p>8. Shri Noronha, the learned Counsel on behalf of the tenant has referred to the expression 'claims' in the proviso to Section 21 of the Act and has submitted that an inquiry under Section 21 of the Act is a separate inquiry in the eviction proceedings filed by the landlords and therefore the tenant was entitled at any stage of the said inquiry to withdraw the said claim. Shri Noronha on this aspect has referred to the case of Prahlad Dass v. Bhagirath Lal : AIR1977Delhi129 wherein after relying on the case of Roshan Lal and Anr. v. Madan Lal and Ors. : [1976]1SCR878 it was held that the provisions of Order 23, Rule 1 of the C.P.C. apply to eviction suits governed by Special Statute, and, the case of Prahlad Doss (supra) was under the Delhi Rent Control Act, 1975. Referring to the decision in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. : [1967]3SCR886 . Shri Noronha has submitted that the defendant has an unqualified right to withdraw the claim and further referring to the decision in Thirnaiah v. Madegowda : AIR1989Kant83 has submitted that the defendant cannot be tied down to any particular plea. Again, referring to the decision in National Agricultural Cooperative Marketing Federation of India Ltd. v. Alimenta S.A. : AIR1989SC818 . Shri Noronha has submitted that the defendant can give up part of the claim. Shri Noronha has further submitted that if at all any right will accrue to the landlord, it will be only after the decision in the said inquiry under Section 21 of the Act and on this aspect Shri Noronha has placed reliance on the case of Dolumol Sunderdas v. State of Madhya Pradesh and Ors. : AIR1971MP127 .',
	(int) 10 => '<p>9. On the other hand Shri Lotlikar has submitted that the amendment application filed by the tenant to withdraw the plea earlier taken is mala fide and has been filed with a view to avoid an adverse decision in the said inquiry held under Section 21 of the Act and with a further view to delay the eviction proceedings. Shri Lotlikar has further submitted that the moment a plea of permanent tenancy is taken, the same gives a right to the landlord to seek eviction of the tenant. Shri Lotlikar has placed reliance on the case of Smt. Sabitri Debi v. Ramachandra Mishra and Ors. : AIR1985Ori245 wherein it is stated that :-',
	(int) 11 => '<p>The Courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.',
	(int) 12 => '<p>10. This Court will interfere in either certiorari or supervisory jurisdiction against an order of the Subordinate or Inferior Court only in case it is shown that the error committed is an error manifest and apparent on the face of the record or grave injustice or failure of justice has been occasioned thereby and not for correcting mere errors of fact or law. (See the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , Shri Noronha, the learned Advocate of the tenant has not been able to show that the orders of the learned Rent Controller or for that matter of the Administrative Tribunal are utterly erroneous apart from the reasons assigned by the Rent Controller or the Administrative Tribunal. In fact, none of the authorities cited on behalf of the tenant or for that matter on the part of the landlords deal with the controversy which we heed in these petitions. Even the case of Dolumol Sunderdas v. State of M.P. : AIR1971MP127 dealt with a case of repeal of a Statute and the right to take advantage of the provisions of a repealed Statute. There can be no dispute that amendment of pleadings is a rule and refusal is an exception and as far as the amendment of a written statement, it is always granted more liberally than the amendment of plaint. Admittedly, the tenant by his first application dated 7.7.93 sought an amendment to the written statement, on the ground that it would be in the interest of justice to allow the tenant to take the plea of permanent tenancy. However the tenant in subsequent application dated 14.6.04 did not assign any reason as to why the tenant was withdrawing the plea of permanent tenancy taken by him earlier, and, it has been submitted by Shri Noronha that the withdrawal of the said plea is sought to be made on reconsideration of the matter. Admittedly, the case of eviction was filed by the landlords on two grounds namely the ground of Section 22(2}(b)(i) and (ii) of the Act. The tenant by taking up the said plea of permanent tenancy gave the landlords an additional ground of eviction under Section 22(2)(g) of the Act. The case of Modi Spinning & Weaving Mills Co. Ltd. &. Anr. v. Ladha Ram & Co. : [1977]1SCR728 was a case of displacing the plaintiff completely from admissions made by the defendants in the written statement and therefore the Supreme Court, speaking through its three learned Judges, disallowed an application for amendment of the written statement which would displace the plaintiff completely, from admissions made by the defendants in the written statement. The same analogy could be followed in the case at hand. The tenant by taking up the said plea of permanent tenancy gave a new or additional ground to the landlords for the eviction of the tenant, in case the said plea of permanent tenancy was proved not to be bona fide. Both the parties have been agitating over the said plea for over ten years. It would hardly matter if the said period of ten years lapsed on account of the fault of either of the parties or for that matter on account of the fault of the learned Rent Controller in adjourning the proceedings for one reason or the other. In my view an amendment which would displace the landlords from the said new ground of eviction made available to him by virtue of earlier amendment application ought not to have been allowed and has rightly not been allowed to be carried out by the Controller as well as the Administrative Tribunal.',
	(int) 13 => '<p>11. In the above view of he matter, in my opinion, there is no merit in these petitions which are hereby dismissed. The learned Rent Controller is hereby directed to dispose of both the cases as per the directions of the Administrative Tribunal given in order dated 10,6.04.',
	(int) 14 => '<p>Expedite authenticated copy.<p>',
	(int) 15 => '<p>'
)
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