Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2128 OF 2018
M/s. Shant Snacks & Beer Bar
At 657/A-3, Shivaji Nagar,
Jangli Maharaja Road, Pune 411 004.
Through its Partner
Kamlesh Kishanlal Shahani ... Petitioner
v/s.
Shri Chandrakant Shankarrao Pethkar
2. Smt. Kumudini Chandrakant Pethkar
3. Shri Sachin Chandrakant Pethkar
4. Shri Abhijit Chandrakant Pethkar
5. Shri Jitendra Chandrakant Pethkar
R./at: Row House No.5, Shefali ka Heights,
Survey NO.110/1/A, Balwantpuram,
Shivthirth Nagar, Paud Road,
Kothard, Pune 411038. ... Respondents
Mr. R.A.Thorat, sr. advocate a/w. Girish Utangale & Pratibha Shelke
i/b. M/s. Utangale & co. for petitioner.
Mr. Rafique Dada, sr. advocate i/b. Nitin P. Deshpande for respondents
1 & 2.
Mr. S.S.Patwardhan for respondent no.5.
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CORAM : DAMA SESHADRI NAIDU, J.
th
6 September 2019.
JUDGMENT
Rule. Rule made returnable forthwith. Heard finally by consent
of the parties.
2. At times, though not always, advocacy amounts to an art of
complicating the simple. Then, the adjudication ought to be
simplifying the complicated. The success is a mixed bag, though.
3. There is a usual dispute between the landlord and the tenant;
but there is an unusual development: that single dispute spiraling into
six suits. Concerned at the conflicting causes, this Court wanted the
parties to consolidate the cases—to bring the genie of litigation back
into the bottle of one suit. The parties attempted it; but again, the genie
seems to be all over the place.
4. The petitioner, a partnership firm, is the tenant; and the
respondents are the owners. When the tenancy was subsisting, the
owners purchased the property. Then the Firm filed Suit No.292 of
2006, for a declaration that it is the tenant; it also sought other
incidental reliefs. Soon after that, the owners filed Suit No. 438 of
2006 for eviction, among other things, on the grounds of bona fide
requirement.
5. Complained by the owners or on its own, the Pune Municipal
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Corporation demolished a part of the tenanted premises. The owners,
however, maintain that the Corporation demolished only illegal
structures. Let us not enter this thicket of controversy.
6. The Firm, then, filed Suit No. 1711 of 2013 against the
demolition. In that suit, the owners applied under section 9A of CPC;
they questioned the maintainability of the suit. On 9 January 2015, the
Civil Court allowed that application in part. In relation to certain
reliefs, the suit was held not maintainable.
7. The Firm alleges that the owners raised a wall in the open
space, which is said to be part of the leased property. The owners, of
course, deny. They say the wall was raised on the property unconnected
with the lease. That has led to another suit: Suit No. 281 of 2015. It
was by the Firm for damages and injunction. In that suit, issues were
framed and an affidavit-in-chief, too, was filed. The Firm wanted to
mark a xerox copy of the tenancy agreement, dated 10th of May 1988.
Faced with the problem of its admissibility, the Firm applied under
Exhibit 108 for leading secondary evidence. It has also applied under
Exhibit 124 for amending the area in its occupation. Initially, the Firm
pleaded it had occupied 600 sq yards; now it wants that area altered as
1316.87 sq. ft.
8. Aggrieved, the Firm filed Writ Petition (L) No. 29158 of 2016
nd
challenging the trial Court’s Order, dated 2 March 2015. We need
not, it seems, refer to other suits here.
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9. As a matter of parallel developments, the owners applied
under Section 9A of CPC in OS No.281 of 2015. They raised
jurisdictional issues and wanted the trial Court to reject the plaint. In
April 2016, the trial Court partly allowed the Application. Aggrieved,
the Firm filed Civil Revision Application No. 503 of 2016 before this
th
Court impugning the trial Court’s Order, dated 25 April 2016.
10. This Court consolidated both the writ petition and the CRA;
it, then, advised the parties to narrow down the differences. It wanted
the tenant to bring all its pleas—the subsequent developments after its
filing the first suit—into the first suit. The parties agreed. Their
rd
consensus was recorded in the Minutes of the Order, dated 23 March
2017. The next day, based on those Minutes of the Order, this Court
disposed of both the writ petition and the CRA.
11. Acting on the Minutes of Order and this Court’s Order, dated
th
24 March 2017, the Firm applied below Exhibit 154, in Civil Suit No.
th
292 of 2006, for amending the plaint. Then, on 5 December 2017,
the trial Court partly allowed the Application. Aggrieved, the Firm
filed this Writ Petition.
Submissions:
Petitioner:
12. Shri R.A.Thorat, the learned Senior Counsel for the
petitioner, has submitted that initially the parties had six suits between
them involving the same subject: the leased property. But each suit
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covered the later developments to the previous suit. All of them could
have stood on their own strength because each suit had a distinct cause
of action. But, according to the learned Senior Counsel, when a couple
of interlocutory orders reached this Court, it suggested to the parties to
ensure that all the grievances on either side stand pleaded in one suit
comprehensively. It is, perhaps, to avoid multiplicity of proceedings
and conflict of judgments.
13. Shri Thorat has submitted that both the parties acted on this
Court’s advice and filed Minutes of Order, agreeing to proceed with
one matter. Then on the strength of the Court’s order, the Firm applied
under Exhibit 154 before the trial Court to amend the pleadings in Suit
No.292 of 2006. According to him, despite this Court’s specific
directive, the trial Court has erred in rejecting most of the reliefs the
petitioner has sought in Exhibit 154.
14. Shri Thorat strenuously contended that the amendments
sought are well within the bounds prescribed by this Court in its order,
th
24 March 2017. In the alternative, the learned Senior Counsel has
submitted that the Firm has its right to amend the pleadings under
Order 6, Rule 17 of CPC. And that right is independent of, and in
addition to, its right under the Minutes of Order. So any plea or relief
beyond the Minutes of Order stands covered by Order 6, Rule 17.
15. Shri Thorat has taken me through the Minutes of Order, the
pleadings in Exhibit 154, and also the impugned Order. According to
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him, most of the assertions in Exhibit 154 are subsequent
developments; they ought to have been brought on record. About the
reliefs, Shri Thorat contends that reliefs have already been sought in
the other suits. If at all there is any variation in them, that variation is
nothing but elaboration of the pleas already taken. Thus, the learned
Senior Counsel has contended that the trial Court has erred in rejecting
the Firm’s application in part.
16. About the dispute concerning the extent of area under the
Firm’s occupation, Shri Thorat contends that this Court permitted the
petitioner to urge that issue, too, during the trial. Unless the Firm
brings that aspect on record by amendment, it cannot establish that fact
by leading evidence because no amount of evidence can rescue the case
without a foundation of pleading. Therefore, he has urged this Court
to allow the petition.
Respondents:
17. Shri Rafique Dada, the learned Senior Counsel for
respondents, has first addressed the issue of amending the area of
tenancy. According to him, the petitioner, first, consciously pleaded
that the area is 600 sq. feet, but now it wanted that area expanded to
1316.87 sq. feet. Shri Dada contends that if the amendment were to be
allowed, it would take away an admission, and that is impermissible.
At any rate, the learned Senior Counsel has submitted that this Court
granted liberty to the Firm to adduce evidence and establish its plea
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about the vacant land but not the constructed portion of the lease.
18. The learned Senior Counsel has also strenuously contended
that the trial Court has earlier upheld the owners’ contentions and
objections under Section 9A of CPC. Aggrieved against those findings,
the Firm approached this Court, but it did not take those proceedings
to their logical end. Instead, it only withdrew those proceedings; that is,
on the Firms’ request, this Court closed those proceedings. So the Firm
cannot, in the guise of an amendment, resurrect in the guise of an
amendment whatever the trial Court has rejected.
19. According to Shri Dada, whatever is not permissible directly
is still impermissible indirectly. Then, turning to the Firms’ attempt
under Exhibit 154 to amend the pleadings in C.S. No.292 of 2006, he
contends that the Firm is attempting to bring in through back door
whatever has already been rejected by the trial Court and whatever,
thus, has attained finality. Shri Dada has tabulated the reliefs the
petitioner originally sought and the reliefs now the Firm sought under
Exhibit 154. In that context, the learned Senior Counsel asserts that the
amendments are not clarificatory. On the contrary, the Firm wanted to
plead afresh not only the facts for the first time but also the reliefs
which are beyond the causes of action it had initially pleaded.
Therefore, Shri Dada has urged this Court to dismiss the writ petition.
20. Heard the learned Senior Counsel Shri R. A. Thorat for the
petitioner, and learned Senior Counsel Shri Rafique Dada, instructed
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by Adv. Shri Nitin Deshpande, for the respondents.
Discussion:
21. The question is whether the Firm wanted the amendments
th
beyond this Court’s Order, dt.24 March 2017, which, in turn, was
based on the previous day’s Minutes of Order.
th
The Scope of this Court’s Order, dated 24 March 2017:
22. By the consent of the parties, this Court disposed of the Writ
Petition and the Civil Revision Application. From this Court’s Order,
three issues emerge: I, II, and III.
(I) Leading Secondary Evidence.
(II) Amendment regarding area.
(III)Amendment of pleadings in Civil Suit No.292 of 2006.
Issue I: Leading Secondary Evidence:
23. The Firm, as this Court has held, will have to withdraw the
Application below Exhibit 108 in Suit No.296 of 2006. It was taken
out seeking the trial Court’s permission to lead Secondary evidence.
th
Now, as per this Court’s Order, dated 24 March 2017, the Firm will
apply once again by furnishing additional information. And if
necessary, it may seek the “permission to lead secondary evidence in
th
addition to Agreement of Tenancy, dated 10 May 1988. The Trial
Court will deal with same in accordance with law.” So the amendment
is a non-issue here. It is left open.
Issue No.II: Amendment of Area:
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24. First, the Firm applied below Exhibit 124 to amend the built
up are from 600 sq. ft., to 1316.87 sq. ft. It was rejected through Order,
dt.10.07.2015. Later, this Court in the Order, dt.24.03.2017, has held
that it is open for the Firm to establish its case “including the question
as to whether the [Firm] is the tenant of open land admeasuring 4342
sq. ft., by producing on record all relevant documents and “by placing
reliance on the same in the application for amendment.” It does not
concern the built-up area, though.
25. Here, in the impugned Order, the trial Court has rejected this
relief. I reckon the Firm’s effort is to place an alternative extent of area
on record; it concerns the built-up area. The question is does it have
the effect of taking away an admission? First, the Firm has the Court’s
leave about whether it is the tenant of the open land admeasuring 4342
sq. ft. I reckon it has no such liberty about the built-up area. I can only
hold that if the built-up area is more than what has been pleaded, it is a
matter of fact—and a verifiable one, at that. The Firm may lead
evidence on that question, and the landlords, too, can contest the
Firm’s evidence on the actual extent of the built-up area. Thus, the
actual built-up area is a matter of evidence and it is left open.
Issue No.I:
26. It is two-fold: (a) transporting the pleadings from 2015 suit to
2006 suit; (b) incorporating the reliefs the same way. The
incorporation of the reliefs suffers from a limitation. Earlier, the
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owners applied under Section 9A of CPC in Suit No.281 of 2015.
They wanted the trial Court reject certain reliefs the Firm sought, as
beyond the Small Cause Court’s jurisdiction. Through Order,
dt.25.04.2016, the trial Court partly allowed that application. It has
held prayers (a) to (e) as beyond its jurisdiction. Against this Order, the
Firm filed Civil Revision Application No. 503 of 2016. Now this CRA
stands withdrawn. So, in that context, what governs is the Minutes of
Order. Nothing beyond.
27. From the Order, I gather that the Firm can merge the
pleadings, including the relief, of Suit No.281 of 2015 with those of
Civil Suit No.292 of 2006. It is a virtual amalgamation of the two
suits. But it must be subject to whatever has happened in Suit No.281
of 2015. That means, we cannot ignore the Section 9A application in
that suit and its outcome: the trial Court has held that it has no
jurisdiction to entertain reliefs (a) to (e). CRA No.503 of 2016
concerned the jurisdictional issues in OS No.281 of 2015. Now, that
CRA withdrawn, whatever the trial Court held in that suit as beyond
its jurisdiction cannot be revived.
28. As to transporting the pleadings from OS No.281 of 2015 to
Suit No.292 of 2006, we need to pay attention to one thing. If the
importation is direct, it presents no problem. But here, it is a little
different. Some pleadings sought to be incorporated elaborate on what
was pleaded in Civil Suit No.281 of 2015. And some concern, it seems,
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the later developments. The question is, can those later developments
be permitted for they may, strictly speaking, fall beyond this Court’s
th
permission in its Order, dated 24 March 2017.
29. On this count, the Firm argues that even without this Court’s
Order, it has an independent right to bring the later developments on
record under Order 6, Rule 17 of CPC. At any rate, it contends that
those amendments are essential to resolve the controversy in issue and
do not prejudice the owners. So we will consider only those
amendments that have been rejected.
30. We will consider them tabularly as presented by the
respondent-owners.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2128 OF 2018
M/s. Shant Snacks & Beer Bar
At 657/A-3, Shivaji Nagar,
Jangli Maharaja Road, Pune 411 004.
Through its Partner
Kamlesh Kishanlal Shahani ... Petitioner
v/s.
Shri Chandrakant Shankarrao Pethkar
2. Smt. Kumudini Chandrakant Pethkar
3. Shri Sachin Chandrakant Pethkar
4. Shri Abhijit Chandrakant Pethkar
5. Shri Jitendra Chandrakant Pethkar
R./at: Row House No.5, Shefali ka Heights,
Survey NO.110/1/A, Balwantpuram,
Shivthirth Nagar, Paud Road,
Kothard, Pune 411038. ... Respondents
Mr. R.A.Thorat, sr. advocate a/w. Girish Utangale & Pratibha Shelke
i/b. M/s. Utangale & co. for petitioner.
Mr. Rafique Dada, sr. advocate i/b. Nitin P. Deshpande for respondents
1 & 2.
Mr. S.S.Patwardhan for respondent no.5.
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CORAM : DAMA SESHADRI NAIDU, J.
th
6 September 2019.
JUDGMENT
Rule. Rule made returnable forthwith. Heard finally by consent
of the parties.
2. At times, though not always, advocacy amounts to an art of
complicating the simple. Then, the adjudication ought to be
simplifying the complicated. The success is a mixed bag, though.
3. There is a usual dispute between the landlord and the tenant;
but there is an unusual development: that single dispute spiraling into
six suits. Concerned at the conflicting causes, this Court wanted the
parties to consolidate the cases—to bring the genie of litigation back
into the bottle of one suit. The parties attempted it; but again, the genie
seems to be all over the place.
4. The petitioner, a partnership firm, is the tenant; and the
respondents are the owners. When the tenancy was subsisting, the
owners purchased the property. Then the Firm filed Suit No.292 of
2006, for a declaration that it is the tenant; it also sought other
incidental reliefs. Soon after that, the owners filed Suit No. 438 of
2006 for eviction, among other things, on the grounds of bona fide
requirement.
5. Complained by the owners or on its own, the Pune Municipal
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3 / 15 6.9.19wp2128.18...doc
Corporation demolished a part of the tenanted premises. The owners,
however, maintain that the Corporation demolished only illegal
structures. Let us not enter this thicket of controversy.
6. The Firm, then, filed Suit No. 1711 of 2013 against the
demolition. In that suit, the owners applied under section 9A of CPC;
they questioned the maintainability of the suit. On 9 January 2015, the
Civil Court allowed that application in part. In relation to certain
reliefs, the suit was held not maintainable.
7. The Firm alleges that the owners raised a wall in the open
space, which is said to be part of the leased property. The owners, of
course, deny. They say the wall was raised on the property unconnected
with the lease. That has led to another suit: Suit No. 281 of 2015. It
was by the Firm for damages and injunction. In that suit, issues were
framed and an affidavit-in-chief, too, was filed. The Firm wanted to
mark a xerox copy of the tenancy agreement, dated 10th of May 1988.
Faced with the problem of its admissibility, the Firm applied under
Exhibit 108 for leading secondary evidence. It has also applied under
Exhibit 124 for amending the area in its occupation. Initially, the Firm
pleaded it had occupied 600 sq yards; now it wants that area altered as
1316.87 sq. ft.
8. Aggrieved, the Firm filed Writ Petition (L) No. 29158 of 2016
nd
challenging the trial Court’s Order, dated 2 March 2015. We need
not, it seems, refer to other suits here.
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9. As a matter of parallel developments, the owners applied
under Section 9A of CPC in OS No.281 of 2015. They raised
jurisdictional issues and wanted the trial Court to reject the plaint. In
April 2016, the trial Court partly allowed the Application. Aggrieved,
the Firm filed Civil Revision Application No. 503 of 2016 before this
th
Court impugning the trial Court’s Order, dated 25 April 2016.
10. This Court consolidated both the writ petition and the CRA;
it, then, advised the parties to narrow down the differences. It wanted
the tenant to bring all its pleas—the subsequent developments after its
filing the first suit—into the first suit. The parties agreed. Their
rd
consensus was recorded in the Minutes of the Order, dated 23 March
2017. The next day, based on those Minutes of the Order, this Court
disposed of both the writ petition and the CRA.
11. Acting on the Minutes of Order and this Court’s Order, dated
th
24 March 2017, the Firm applied below Exhibit 154, in Civil Suit No.
th
292 of 2006, for amending the plaint. Then, on 5 December 2017,
the trial Court partly allowed the Application. Aggrieved, the Firm
filed this Writ Petition.
Submissions:
Petitioner:
12. Shri R.A.Thorat, the learned Senior Counsel for the
petitioner, has submitted that initially the parties had six suits between
them involving the same subject: the leased property. But each suit
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covered the later developments to the previous suit. All of them could
have stood on their own strength because each suit had a distinct cause
of action. But, according to the learned Senior Counsel, when a couple
of interlocutory orders reached this Court, it suggested to the parties to
ensure that all the grievances on either side stand pleaded in one suit
comprehensively. It is, perhaps, to avoid multiplicity of proceedings
and conflict of judgments.
13. Shri Thorat has submitted that both the parties acted on this
Court’s advice and filed Minutes of Order, agreeing to proceed with
one matter. Then on the strength of the Court’s order, the Firm applied
under Exhibit 154 before the trial Court to amend the pleadings in Suit
No.292 of 2006. According to him, despite this Court’s specific
directive, the trial Court has erred in rejecting most of the reliefs the
petitioner has sought in Exhibit 154.
14. Shri Thorat strenuously contended that the amendments
sought are well within the bounds prescribed by this Court in its order,
th
24 March 2017. In the alternative, the learned Senior Counsel has
submitted that the Firm has its right to amend the pleadings under
Order 6, Rule 17 of CPC. And that right is independent of, and in
addition to, its right under the Minutes of Order. So any plea or relief
beyond the Minutes of Order stands covered by Order 6, Rule 17.
15. Shri Thorat has taken me through the Minutes of Order, the
pleadings in Exhibit 154, and also the impugned Order. According to
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him, most of the assertions in Exhibit 154 are subsequent
developments; they ought to have been brought on record. About the
reliefs, Shri Thorat contends that reliefs have already been sought in
the other suits. If at all there is any variation in them, that variation is
nothing but elaboration of the pleas already taken. Thus, the learned
Senior Counsel has contended that the trial Court has erred in rejecting
the Firm’s application in part.
16. About the dispute concerning the extent of area under the
Firm’s occupation, Shri Thorat contends that this Court permitted the
petitioner to urge that issue, too, during the trial. Unless the Firm
brings that aspect on record by amendment, it cannot establish that fact
by leading evidence because no amount of evidence can rescue the case
without a foundation of pleading. Therefore, he has urged this Court
to allow the petition.
Respondents:
17. Shri Rafique Dada, the learned Senior Counsel for
respondents, has first addressed the issue of amending the area of
tenancy. According to him, the petitioner, first, consciously pleaded
that the area is 600 sq. feet, but now it wanted that area expanded to
1316.87 sq. feet. Shri Dada contends that if the amendment were to be
allowed, it would take away an admission, and that is impermissible.
At any rate, the learned Senior Counsel has submitted that this Court
granted liberty to the Firm to adduce evidence and establish its plea
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about the vacant land but not the constructed portion of the lease.
18. The learned Senior Counsel has also strenuously contended
that the trial Court has earlier upheld the owners’ contentions and
objections under Section 9A of CPC. Aggrieved against those findings,
the Firm approached this Court, but it did not take those proceedings
to their logical end. Instead, it only withdrew those proceedings; that is,
on the Firms’ request, this Court closed those proceedings. So the Firm
cannot, in the guise of an amendment, resurrect in the guise of an
amendment whatever the trial Court has rejected.
19. According to Shri Dada, whatever is not permissible directly
is still impermissible indirectly. Then, turning to the Firms’ attempt
under Exhibit 154 to amend the pleadings in C.S. No.292 of 2006, he
contends that the Firm is attempting to bring in through back door
whatever has already been rejected by the trial Court and whatever,
thus, has attained finality. Shri Dada has tabulated the reliefs the
petitioner originally sought and the reliefs now the Firm sought under
Exhibit 154. In that context, the learned Senior Counsel asserts that the
amendments are not clarificatory. On the contrary, the Firm wanted to
plead afresh not only the facts for the first time but also the reliefs
which are beyond the causes of action it had initially pleaded.
Therefore, Shri Dada has urged this Court to dismiss the writ petition.
20. Heard the learned Senior Counsel Shri R. A. Thorat for the
petitioner, and learned Senior Counsel Shri Rafique Dada, instructed
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by Adv. Shri Nitin Deshpande, for the respondents.
Discussion:
21. The question is whether the Firm wanted the amendments
th
beyond this Court’s Order, dt.24 March 2017, which, in turn, was
based on the previous day’s Minutes of Order.
th
The Scope of this Court’s Order, dated 24 March 2017:
22. By the consent of the parties, this Court disposed of the Writ
Petition and the Civil Revision Application. From this Court’s Order,
three issues emerge: I, II, and III.
(I) Leading Secondary Evidence.
(II) Amendment regarding area.
(III)Amendment of pleadings in Civil Suit No.292 of 2006.
Issue I: Leading Secondary Evidence:
23. The Firm, as this Court has held, will have to withdraw the
Application below Exhibit 108 in Suit No.296 of 2006. It was taken
out seeking the trial Court’s permission to lead Secondary evidence.
th
Now, as per this Court’s Order, dated 24 March 2017, the Firm will
apply once again by furnishing additional information. And if
necessary, it may seek the “permission to lead secondary evidence in
th
addition to Agreement of Tenancy, dated 10 May 1988. The Trial
Court will deal with same in accordance with law.” So the amendment
is a non-issue here. It is left open.
Issue No.II: Amendment of Area:
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24. First, the Firm applied below Exhibit 124 to amend the built
up are from 600 sq. ft., to 1316.87 sq. ft. It was rejected through Order,
dt.10.07.2015. Later, this Court in the Order, dt.24.03.2017, has held
that it is open for the Firm to establish its case “including the question
as to whether the [Firm] is the tenant of open land admeasuring 4342
sq. ft., by producing on record all relevant documents and “by placing
reliance on the same in the application for amendment.” It does not
concern the built-up area, though.
25. Here, in the impugned Order, the trial Court has rejected this
relief. I reckon the Firm’s effort is to place an alternative extent of area
on record; it concerns the built-up area. The question is does it have
the effect of taking away an admission? First, the Firm has the Court’s
leave about whether it is the tenant of the open land admeasuring 4342
sq. ft. I reckon it has no such liberty about the built-up area. I can only
hold that if the built-up area is more than what has been pleaded, it is a
matter of fact—and a verifiable one, at that. The Firm may lead
evidence on that question, and the landlords, too, can contest the
Firm’s evidence on the actual extent of the built-up area. Thus, the
actual built-up area is a matter of evidence and it is left open.
Issue No.I:
26. It is two-fold: (a) transporting the pleadings from 2015 suit to
2006 suit; (b) incorporating the reliefs the same way. The
incorporation of the reliefs suffers from a limitation. Earlier, the
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10 / 15 6.9.19wp2128.18...doc
owners applied under Section 9A of CPC in Suit No.281 of 2015.
They wanted the trial Court reject certain reliefs the Firm sought, as
beyond the Small Cause Court’s jurisdiction. Through Order,
dt.25.04.2016, the trial Court partly allowed that application. It has
held prayers (a) to (e) as beyond its jurisdiction. Against this Order, the
Firm filed Civil Revision Application No. 503 of 2016. Now this CRA
stands withdrawn. So, in that context, what governs is the Minutes of
Order. Nothing beyond.
27. From the Order, I gather that the Firm can merge the
pleadings, including the relief, of Suit No.281 of 2015 with those of
Civil Suit No.292 of 2006. It is a virtual amalgamation of the two
suits. But it must be subject to whatever has happened in Suit No.281
of 2015. That means, we cannot ignore the Section 9A application in
that suit and its outcome: the trial Court has held that it has no
jurisdiction to entertain reliefs (a) to (e). CRA No.503 of 2016
concerned the jurisdictional issues in OS No.281 of 2015. Now, that
CRA withdrawn, whatever the trial Court held in that suit as beyond
its jurisdiction cannot be revived.
28. As to transporting the pleadings from OS No.281 of 2015 to
Suit No.292 of 2006, we need to pay attention to one thing. If the
importation is direct, it presents no problem. But here, it is a little
different. Some pleadings sought to be incorporated elaborate on what
was pleaded in Civil Suit No.281 of 2015. And some concern, it seems,
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the later developments. The question is, can those later developments
be permitted for they may, strictly speaking, fall beyond this Court’s
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permission in its Order, dated 24 March 2017.
29. On this count, the Firm argues that even without this Court’s
Order, it has an independent right to bring the later developments on
record under Order 6, Rule 17 of CPC. At any rate, it contends that
those amendments are essential to resolve the controversy in issue and
do not prejudice the owners. So we will consider only those
amendments that have been rejected.
30. We will consider them tabularly as presented by the
respondent-owners.
| Paragraphs sought to be inserted by<br>way of amendment application exh.<br>154 in C. S. No. 292 of 2006<br>(With observations in the Impugned<br>Order) | Corresponding<br>paragraphs in earlier<br>application/ suit. | |
|---|---|---|
| 1. | 16B<br>Not permitted. (does not seem to be<br>subsequent event) | Para. 7 in C. S. No.<br>281 of 2015 |
| 2. | 16C<br>-Not permitted. (does not seem to be<br>subsequent event) | Para. 8 in C. S. No.<br>281 of 2015 |
| 3. | 16D<br>-Not permitted. (does not seem to be | Para. 9 of C. S. No.<br>281 of 2015 |
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| subsequent event) | ||
|---|---|---|
| 4. | 16E<br>-Not permitted. (does not seem to be<br>subsequent event) | Para. 10 of C. S. No.<br>281 of 2015 |
| 5. | 16F<br>-Not permitted. (does not seem to be<br>subsequent event) | Para. 11 of C. S. No.<br>281 of 2015 |
| 6. | 16G<br>-Not permitted. (only elaboration. But<br>gist is already mentioned in existing<br>para. 6 and known to Plaintiff. Hence<br>outside the scope of liberty.) | Para. 12 of C. S. No.<br>281 of 2015 |
| 7. | 16H<br>-Not permitted. (only elaboration. But<br>gist is already mentioned in existing<br>para. 6 and known to Plaintiff.) | Para. 13 of C. S. No.<br>281 of 2015 |
| 8. | 16S<br>-Not Permitted. (about filing of suit by<br>Plaintiff. Not appropriate contention<br>which connect the proposed<br>amendment) | Para. 25 & 26 of C. S.<br>No. 281 of 2015 |
31. The above paragraphs of pleadings have already existed in C.
S. No.281 of 2015. Their relevance has so far not been tested, unlike
the reliefs which were scrutinised in Application under Exhibit 108,
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that is an application under Section 9A of CPC. In fact, this Court
allowed the Firm to incorporate the pleadings from C. S. No.281 of
2015. So, if they have already existed, their relevance cannot be
questioned now. As a result, I hold that the impugned order suffers to
that extent of rejecting the incorporation of the above paragraphs. I set
aside the order to that extent. Consequently, I direct the trial Court to
permit the Firm to incorporate those paragraphs in C S No.292 of
2006.
32. Now we will examine the other paragraphs, which are sought
to be introduced for the first time. The Firm’s contention is two-fold:
those paragraphs are explanatory or clarificatory; it also maintains that
some of them are, in fact, later developments. Much may not turn on
clarificatory pleadings, for under Order 6 the pleadings shall contain,
and contain only, a statement in a concise form of the material facts on
which the party pleading relies for his claim or defence. It should not
contain evidence by which he has to prove his claim.
33. About the subsequent events, unless they prejudice they need
not be rejected merely on the grounds that they have not been pleaded
in C. S. No.281 of 2015. As the Firm has contended, it may have its
independent right still intact under Order 6, Rule 17 to bring on record
subsequent events. Instead of driving the Firm to another interlocutory
round, we had better consider whether they could be allowed. Or, in
other words, we may consider whether the trial Court has committed
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any error in rejecting them.
| Paragraphs sought to be inserted | No corresponding<br>paragraph | |
|---|---|---|
| 9. | 16T<br>-Not Permitted. (already covered in<br>original plaint. Therefore, not<br>subsequent events.) | NOT a part of C. S.<br>No. 281 of 2015 |
| 10<br>. | 16V.<br>-Not Permitted. (not subsequent events<br>though necessary to decide controversy<br>between the parties) | NOT a part of C. S.<br>No. 281 of 2015 |
| 11. | 16W.<br>-Not Permitted. (not subsequent events<br>though necessary to decide controversy<br>between the parties) | NOT a part of C. S.<br>No. 281 of 2015 |
| 12<br>. | 16X.<br>-Not Permitted. (no specific<br>observation.) | Para. 28 of C. S. No.<br>281 of 2015 |
34. Paragraph 16T was not permitted on the premise that it has
already been covered in the original plaint. So it is not felt to be a
subsequent event. Paragraph 16V speaks of the Firm’s correspondence
with the previous owner. It is not, as the trial Court has held, a
subsequent event. I agree.
35. Paragraph 16W, too, concerns the previous owner—rightly
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rejected by the trial Court. And, finally, paragraph 16X. This paragraph
concerns the previous judicial proceedings. It is a matter of public
record. Its rejection, I reckon, may amount to hyper-technicality.
35. So I allow paragraphs 16T and 16X to be incorporated in C S
No.292 of 2006, but not paragraphs 16V and 16W.
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36. This Court’s direction in its earlier order dated 24 March
2017 about speedy disposal remains. Given the later round of litigation,
the time frame earlier fixed needs to be re-fixed. As a result, I hold that
the trial Court will endevour to dispose of the suit expeditiously in nine
months. For any reason, if the trial Court cannot dispose of the case by
then, it may apply to this Court for extension.
37. The parties must proceed with the matter whenever the trial
Court posts the matter. And adjournments, if any, are entirely within
the trial Court’s discretion.
In the manner indicated above, I allow this writ petition in part.
The rule is made absolute in the above terms. No order on costs.
[DAMA SESHADRI NAIDU, J.]
L.S.Panjwani, P.S.
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