Bombay High Court
Funds And Properties Of The Parsi … vs Minoo Keki Mistry And Ors on 9 October, 2024
2024:BHC-AS:40200
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13291 OF 2024
1. Funds and Properties of the Parsi
Punchayet, Bombay, who are vested
with the properties of RN & NN Wadia
Trust building for Parses having their
Trust Office situated at Neville House,
Ballard Estate, Mumbai 400 038.
2. Viraf Dinshaw Mehta
Age 44 years, occ: Service
3. Armaity Rustom Tirandaz
Age 73 yrs, occ: Social Service
and Physiotherapist
4. Xerxes Vispi Dastur,
Age 51 years, Chartered Accountant
5. Anahita Yazdi Desai
age 59 years, occ: Social Worker
and Community Activist
6. Hoshang Jal Bejon Jal
Age 66 yrs, occ: Retired IRS Officer
7. Maharukh Kobad Noble
Age 66 years, Occ:Social worker
8. Adil Jiji Malia,
Age 64 years, occ: Business
Management Consultant
The Petitioner Nos. 2 to 8 are the
present Trustees of Funds and
Properties of the Parsi Punchayet,
Bombay, who are vested with the
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R.N. & N.N. Wadia Trust Buildings
of Parsees, having trust office situated
at Neville House, Ballard Estate,
Mumbai 400 038. ....Petitioners
V/S
1. Minoo Keki Mistry
Age: Not known Occ: Business
Garage No. 1, situated on Plot No. 7
Petit Compound, Behind Ness Baug,
Nana Chowk, Mumbai 400 007.
2. Heirs and Legal Representatives
of Late Mr. Darayus Cawas Balsara,
if any Flat No. 5, 2. K1 floor Keki Court
Cumballa Hill, Mumbai 400026
3. Shabbir Patanwala
Age and Occ: Not known
Shop No. 2 on Plot No. 7
Petit Compound, Behind Ness Baug
Nana Chowk, Mumbai 400007
4. A. G. Lokhandwala
Age and Occ: Not known
Claim to be partners doing business in
Shop No. 2 on Plot No. 7
Petit Compound, Behind Ness Baug
Nana Chowk, Mumbai 400007 ....Respondents
_________
Mr. Jamsheed Master with Mr. Agnel Carneiro and Mr. Smith John
i/b M/s. Mulla & Mulla & Cragie Blunt & Caroe for the Petitioners.
Mr. Mihir Tambe with Mr. Mihir Nerurkar i/b M/s. Bharucha &
Partners for Respondent No.1.
Mr. Kedar Purav, for Respondent Nos.3 and 4.
__________
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CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 03 OCTOBER 2024.
PRONOUNCED ON : 09 OCTOBER 2024.
J U D G M E N T:
1. Rule. Rule is made returnable forthwith. With the consent of the
learned counsel appearing for parties, the Petition is taken up for final
hearing and disposal.
2. Petitioners have filed this Petition challenging order dated 1
August 2024 passed by Appellate Bench of Small Causes Court allowing
Revision Application No. 92 of 2024 and setting aside order dated 2
November 2023 passed by the learned Judge of the Small Causes Court.
By order dated 2 November 2023, Small Causes Court had allowed
application filed by Petitioners/Plaintiffs at Exhibit-18 for amendment of
the Plaint. The Appellate Bench has however reversed Trial Court’s
Order and has dismissed the application for amendment of Plaint at
Exhibit-18. Aggrieved by rejection of their application for amendment of
the Plaint, Plaintiffs have filed the present Petition.
3. Plaintiff No.1 is a Public Charitable Trust and Plaintiff Nos.2 to 8
are its Trustees. Plot No.7 situated in D-Ward, bearing No. 3371 (6A), at
Petit Compound, Behind Ness Baug, Nana Chowk, Mumbai -400 007 is
the suit property. It is Plaintiffs’ case that one Mr. Cawas Balsara was
inducted as monthly tenant in respect of the suit plot, after whose
death, his son Mr. Daravus Cawas Balsara became the tenant. That a
temporary shed was put up by the tenant at the suit plot, which came to
be assessed by the Municipal Corporation for levy of property taxes.
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That the tenant Mr. Daravus Cawas Balsara passed away on 25 October
2016. Plaintiffs received a letter dated 22 March 2017 from Advocate of
Defendant Nos. 3 and 4 claiming rights in respect of portion of the GI
shed at the suit plot. Plaintiffs also received a separate letter from one
Mr. Minoo Keki Mistry (Defendant No.2) claiming rights in respect of GI
Shed, where he was allegedly conducting his business. Plaintiffs do not
accept entitlement of Defendant Nos. 2 to 4 to occupy any portion of the
suit plot accordingly Plaintiffs have instituted TE & R Suit No.182 of
2018 against “Heirs and legal representative of Late Mr. Darayus Cawas
Balsara” (Defendant No.1), Mr. Minoo Keki Mistry (Defendant No.2),
Mr. Shabbir S. Patanwala (Defendant No.3) and Mr. A.G. Lokhandwala
(Defendant No.4). The Suit is filed by the Plaintiffs under provisions of
section 41 of the Presidency Small Causes Court Act, 1882 (PSCC Act)
on a premise that the suit property let out was open piece of land, which
is not covered by definition of the term ‘premises’ within the meaning of
section 7(9) of the Maharashtra Rent Control Act, 1999 (MRC Act) and
that Defendant Nos. 2 to 4 are not tenants within the meaning of MRC
Act.
4. Defendant No.2-Mr. Minoo Keki Mistry appeared in the suit and
filed Written Statement stating that he is in possession of Garage No.1
admeasuring 50 x 11 ft. at Petit Compound, in which he has been
conducting the business under name “Mistry Motors”. Defendant No.2
has raised the issue of jurisdiction of Small Causes Court to entertain
the suit under section 41 of the PSCC Act contending that Defendant
No.2 is a protected tenant under the provisions of the MRC Act. The
Issues in the suit were framed on 15 October 2020, which includes the
issue of jurisdiction.
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5. In the above background, Plaintiffs filed Application at Exhibit-18
seeking amendment of the Plaint for raising alternate plea of eviction of
Defendants under provisions of MRC Act. In the Schedule of
amendment, Plaintiffs have pleaded that in the event of the Small
Causes Court coming to the conclusion that Defendants or any of them
are protected tenants under MRC Act, they are liable to be evicted on
the grounds of unlawful subletting, additions and alterations, non-user
and bonafide requirement. The grounds of eviction under section 16 of
MRC Act are sought to be incorporated without prejudice to the earlier
ground under Chapter 7 of PSCC Act pleaded by Plaintiff. The
application for amendment was opposed by Defendant No.2 by filing
Affidavit-in-Reply. Defendant No.3 also filed Affidavit-in-Reply opposing
the amendment application. The Trial Court proceeded to allow the
application for amendment by its order dated 2 November 2023. In
revision preferred by Defendant No.2, the Appellate Bench has reversed
the decision of the Trial Court and had dismissed Plaintiffs’ application
for amendment by order dated 1 August 2024, which is subject matter of
challenge in the present Petition.
6. Mr. Master, the learned counsel appearing for
Petitioners/Plaintiffs would submit that the Appellate Bench has erred
in reversing well considered decision of Trial Court allowing
amendment of Plaint. He would submit that the Appellate Bench of
Small Causes Court did not have jurisdiction to try and entertain the
Revision Application in view of the law declared by Full Bench of this
Court in Bhartiben Shah vs. Smt. Gracy Thomas and Ors.1
1 (2013) 2 Mh.L.J. 25
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7. That though issues in the suit are framed, evidence has not been
filed by any of the parties and that therefore no prejudice would be
caused to any of the Defendants if the amendment is allowed. That
Plaintiffs desire to incorporate alternate plea for eviction of Defendants
in the event of Small Causes Court holding that they are protected
tenants under the provisions of MRC Act. That it is permissible for
Plaintiff to raise alternate pleas for claiming relief in a suit. He would
submit that the nature of the suit does not change and continued to
remain same viz. for eviction of Defendants. That all that is sought to be
done is to merely incorporate additional and alternate grounds for
eviction. In support of his contentions Mr. Master would rely upon
following judgments:
i) Praful Manohar Rele vs. Krishnabai Narayan
Ghosalkar & Ors.2
ii) Prabhudas Damodar Kotecha & Ors. vs. Manhabala
Jeram Damodar & Anr.3
iii) Ganesh Prasad vs. Rajeshwar Prasad & Ors.4
iv) Smt. Laxmibai Popatlal Shah & Ors. vs. Pankaj
Anokhelal Nahar5
8. The Petition is opposed by Mr. Mihir Tambe, the learned counsel
appearing for Respondent No.1. He would submit that by way of
amendment Plaintiffs are attempting to introduce mutually destructing
pleas, which is impermissible in law. That the suit is for eviction of
Defendants from open piece of land and therefore the ground of eviction
under section 16 of MRC Act cannot be incorporated in a suit relating to
2 (2014) 11 SCC 316
3 (2013) 15 SCC 358
4 2023 SCC OnLine SC 256
5 Civil WP No.65 of 2020 Bombay High Court
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open piece of land, which is not covered by definition of term ‘premises’.
That the description of the suit property remains unaltered even after
incorporation of amendment. That in such situation, incorporation of
amended plea would not only be mutually destructive but completely
inconsistent with the earlier plea originally set up in the un-amended
plaint. That Plaintiffs cannot be permitted to raise inconsistent pleas in
a suit. That doctrine of election would apply in present case and
Plaintiffs must elect the exact stand that they want to take in the suit.
That the amendment would completely alter the nature of suit since
suit for eviction of unprotected tenant under section 41 of the PSCC Act
can have absolutely no connection with suit for eviction of protected
tenant under section 16 of the MRC Act. That Plaintiffs cannot be
permitted to approbate and reprobate. That the suit has been filed in
the year 2018 whereas the application for amendment is filed after
three years on 11 March 2021. That the amendment application does
not disclose any averments relating to due diligence. That since the
Trial in the suit has commenced on account of framing of issues, post-
trial amendment cannot be permitted in absence of demonstration, due
diligence on the part of the Plaintiffs. He would rely upon Rule 11 of the
PSCC Rules providing for bar for conversion of character of suit into
another inconsistent character. In support of his contentions,
Mr. Tambe would rely upon following judgments:
i) Savitribai Vishnupati Vaske & Ors. vs. Faruk
Abdulrahim Patel & Ors.6
ii) Narendra Harial Jethwa vs. Shri Bholadasji Mandir,
Nashik & Ors.7
iii) Basavaraj vs. Indira & Ors.8
6 2010 (5) Mh.L.J. 357
7 2019 (6) Mh.L.J. 885
8 (2024) 3 SCC 705
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iv) Hiralal alias Hiranand vs. Commissioner of
Customs & Ors.9
9. Mr. Kedar Purav, the learned counsel appearing for Respondent
Nos.3 and 4 (original Defendant Nos.3 and 4) would also oppose the
Petition by adopting the submissions made by Mr. Tambe. He would
pray for dismissal of the Petition.
10. Rival contentions of the parties now fall for my consideration.
11. Plaintiffs have instituted TE & R Suit No.182 of 2018 seeking
eviction of Defendants by describing the suit property as open piece of
land. In this regard paragraph 2 of the Plaint reads thus:
“2. The subject matter of the present suit is Plot No.7 situated in the
D-Ward bearing No.3371(6A) and situated at Petit Compound Behind
Ness Baug, Nana Chowk, Mumbai 400 007. The said Plot is hereinafter
for the sake of brevity described to as the suit premises. The said plot is
bound in the:-
North by : Wood/Joshi Compound No.1
South by : 5A/B
East by : Baug Boundary wall and BMC School
West by : Boligar Company & CTS No.1244,
1/1244 Girgaon Division.
The Monthly compensation in respect of the suit premises is Rs.16551/-
per month and the area approximately of the said Plot is 301.20 sq.
mtrs.”
12. The term ‘premises’ has been defined under sub-section 9 of
section 7 of the MRC Act, which reads as under:
“(9) “premises” means any building or part of a building let or given on
licence separately (other than a farm building) including, –
(i) the gardens, grounds, garages and out-houses, if any,
appurtenant to such building or part of a building,
(ii) any fittings affixed to such building or part of a building
for the more beneficial enjoyment thereof, but does not include a
room or other accommodation in a hotel or lodging house;”
9 2013 SCC OnLine Cal 17620
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13. Thus, the term ‘premises’ does not include mere open piece of land
and therefore the lessee in respect of open piece of land cannot enjoy
protection under the MRC Act. This appears to be the reason why suit
has been filed by Plaintiffs under section 41 of the PSCC Act which
reads thus:
“41. (1) Notwithstanding anything contained elsewhere in this Act but subject
to the provisions of sub-section (2), the Court of Small ad Causes shall have
jurisdiction to entertain and try all suits and proceedings between a licensor
and licensee, or a landlord and tenant, relating to the recovery of possession of
any immovable property situated in Greater Bombay, or relating to the
recovery of the licence fee or charges or rent of therefor, irrespective of the
value of the subject matter of such suits or proceedings.
(2) Nothing contained in sub-section (1) shall apply to suits or proceedings for
the recovery of possession of any immovable property, or of licence to fee or
charges or rent thereof, to which the provisions of the Bombay ser to Rents,
Hotel and Lodging House Rates Control Act, 1947, the Bombay Government
Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act “the
Maharashtra Housing and Area Development Act, 1976 or any other law for
the time being in force, apply.”
14. Thus, the Small Causes Court is vested with necessary
jurisdiction under section 41 of the PSCC Act where the premises are
not covered by the provisions of the MRC Act. Plaintiffs’ suit thus
proceed on a footing that Defendants are not protected tenants under
the MRC Act and have accordingly sought their eviction under section
41 of the PSCC Act. However, after filing of the Written Statement by
Defendant No.2 and by Defendant Nos.3 and 4, Plaintiffs have been
advised to incorporate alternate plea for eviction of Defendants by
admitting that they are protected tenants. The schedule of amendment
appended to the application at Exhibit-18 reads thus:
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“To be added after paragraph No. 20
20 a. The Plaintiffs say that in view of the contentions raised by the
Defendants in their respective Written Statements, and in order to
obviate grievance, the Plaintiffs have without prejudice to their rights
and contentions taken by way of alternative plea that being under the
provisions of the Maharashtra Rent Control Act.
20 b. In the event of this Hon’ble Court coming to the conclusion that
the Defendants or any of them are allegedly protected under the
provisions of the Maharashtra Rent Control Act then in that event the
Plaintiffs seek their eviction from the Suit premises on the grounds as
stated hereinbelow:
a. That the deceased Late Mr. Darayus C. Balsara and/or the Defendant
No.1 herein have without the prior knowledge and consent of the
Plaintiffs inducted into and / or parted with and/or disposed of the
portions of the suit premises to and in favour of the Defendants
separately and exclusively.
b. That each of the Defendants have without the prior knowledge and
consent carried out additions/alterations and modifications of
permanent nature in the portions of the suit premises thereby
rendering the suit property of the Plaintiffs to waste and damage.
c. That the Defendant No. 1 has not used the suit premises for the
purpose for which the same had been let out for a period of more than
six months immediately preceeding the date of the suit without
reasonable cause.
d. That the Plaintiffs require the suit premises for the purposes of the
Trust that being to augment the income of the Trust.
20 c. The Plaintiffs seek possession of the suit premises on the grounds
as stated above without prejudice to their rights and contentions to the
earlier ground pleaded under the provisions of Chapter VII of the
Presidency Small Causes Court Act.”
15. Thus, Plaintiffs want to raise alternate plea in the event of the
Small Causes Court arriving at a conclusion that the Defendants are
protected tenants. In such situation, Plaintiffs want to raise grounds of
unlawful sub-letting, additions and alternations, non-user and bonafide
requirement.
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16. According to Defendant Nos.2 to 4, the pleas under section 41 of
the PSCC Act and under section 16 of the MRC Act are mutually
destructive and that therefore both the pleas cannot be raised in a
single suit. Thus, what is sought to be suggested by Defendant Nos.2 to
4 is that Plaintiffs must elect the exact ground on which and exact
enactment under which eviction of Defendants is sought. It is contended
that the original nature of the suit was premised on assumption that
Defendants do not have protection of Rent Act. However, the amended
plea now introduces a mutually destructive plea of Defendants being
protected tenants. The issue that arises for consideration is whether
such inconsistent pleas can be permitted to be raised in same suit?
17. For answering the issue of permissibility to raise inconsistent
pleas by way of amendment of plaint, it is first necessary to decide
whether the inconsistent pleas under section 41 of the PSCC Act and
section 16 of the MRC Act could be raised in a single suit. The facts of
the present case are unique, where Plaintiffs claim absence of any
privity between them and Defendant Nos.2 to 4. It is Plaintiffs’ case
that what was leased out to the original tenant was only open piece of
land, which is not covered by definition of the term ‘premises’ under
section 7(9) of the MRC Act and that therefore Defendants are not
entitled to the status of protected tenants. Defendants have raised the
plea of being protected tenants under the MRC Act. In such a situation,
it becomes slightly difficult to apply the doctrine of election for
Plaintiffs. If Plaintiffs are made to elect at the inception as to whether
they want to file suit under section 41 of the PSCC Act or under section
16 of the MRC Act, the same in my view would cause severe prejudice to
rights and contentions of Plaintiffs. Such a course of action would alsokatkam Page No. 11 of 28
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of the PSCC Act, spend substantial period of time in prosecuting the
said litigation in hierarchal Courts and in the event it is ultimately
found that Defendants are protected tenants, Plaintiffs will have to re-
initiate the entire process all over again by instituting a fresh suit on
the grounds enumerated under section 16 of the MRC Act. This course
of action can be avoided by permitting Plaintiffs to raise both the pleas
relating to section 41 of the PSCC Act and section 16 of the MRC Act in
a single suit. If both pleas are permitted to be raised in a single suit, far
from causing any prejudice to the Defendants in the matter of defence,
the Trial Court would be in a position to decide both the pleas, taken
without prejudice to each other, in a single suit. This would obviously
avoid multiplicity of proceedings between the parties. In my view
therefore, in a suit of present nature, it is appropriate that the Plaintiffs
are permitted to raise alternate pleas under section 41 of the PSCC Act
and section 16 of the MRC Act in the same suit.
18. The above course of action appears to have been approved by the
Apex Court in its judgment in Praful Manohar Rele (supra). Plaintiff
therein instituted a suit against Defendants describing them as
gratuitous licensees, who were allowed to occupy the premises on
humanitarian grounds without any compensation. Plaintiff therein
terminated the license and called upon Defendants to vacate the
premises and later filed suit for possession by branding the Defendants
as mere gratuitous licensees. In the Written Statement, Defendants
raised plea that they are protected tenants and the suit was dismissed
holding that Plaintiffs failed to prove that Defendants were gratuitous
licensees and that they were monthly tenants. The Appellate Court
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reversed the decree by allowing the appeal and decreed the suit holding
Defendants to be gratuitous licensees. Single Judge of this Court
allowed Second Appeal by formulating the following substantial
question of law:
“Whether the plaintiff could raise two contradictory pleas in the plaint,
namely, that (i) the defendants were permitted to occupy the suit premises
gratis; and (ii) that the defendants should be evicted from the suit premises
under the provisios of the Bombay Rent Act?”
19. In Praful Manohar Rele, this Court held that though Plaintiff
therein could seek relief in the alternative, the contentions raised by
him were not in the alternative, but contradictory and hence could not
be allowed to be urged. This Court held that Plaintiffs’ case of
Defendants being a gratuitous licensee was incompatible with the plea
that they were tenants. In the above factual background, the Apex
Court proceeded to consider whether it was permissible for Plaintiffs to
raise alternate pleas of Defendants being gratuitous licensees and
tenants. The Apex Court held in paragraphs 17, 18, 19, 20, 21, 22, 24,
24.1, 24.2 and 24.3 as under:
“17. The upshot of the above discussion is that the order passed by
the High Court cannot be sustained. Having said that we may deal
with the question whether the plea of licence and tenancy could
be together urged by the plaintiff for grant of relief in a suit for
possession.
18. The general rule regarding inconsistent pleas raised in the
alternative is settled by a long line of decisions rendered by this Court.
One of the earliest decisions on the subject was rendered by this Court
in Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC
177 wherein this Court observed: (AIR p. 179, para 9)“9. … It is true that it was no part of the plaintiff’s case as
made in the plaint that the sum of Rs.30,000 was advanced by
way of loan to the defendants second party. But it was certainly
open to the plaintiff to make an alternative case to that effect
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contract of sale could not be established by evidence. The fact
that such a prayer would have been inconsistent with the other
prayer is not really material. A plaintiff may rely upon
different rights alternatively and there is nothing in the
Civil Procedure Code to prevent a party from making two
or more inconsistent sets of allegations and claiming
relief thereunder in the alternative.”
19. In Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 the
plea of licence was accepted against the plea of tenancy although the
plea of licence was not set up by the appellant. The appellant in that
case contended that the land and the construction over the land
belonged to him and that he had let the constructed portion to the
respondent on a monthly rental basis. The respondent, however, alleged
that although the land belonged to the appellant the building standing
over the same was constructed by the respondent out of his own money
and, therefore, he was entitled to occupy the same till his money was
recovered from the appellant. Since the plea of tenancy set up by the
appellant could not be proved, the Court in Bhagwati Prasad case
(supra) held that the respondent was staying in the house with the
leave and licence of the appellant.
20. What is important is that the Court clearly recognised the principle
that if the plea raised by the tenant in his written statement was clear
and unambiguous in a suit where one party alleged the relationship
between the two to be that of licensor and licensee, while the other
alleged the existence of a tenancy, only two issues arose for
determination, namely, whether the defendant is tenant of the plaintiff
or is holding the property as a licensee. If the court comes to the
conclusion after the parties lead their evidence that the tenancy had
not been proved, then the only logical inference was that the defendant
was in possession of the property as a licensee. This Court said:
(Bhagwati Prasad case³, AIR p. 739, paras 12-13)
12. … In such a case the relationship between the parties
would be either that of a landlord and tenant, or that of an
owner of property and a person put into possession of it by the
owner’s licence. No other alternative is logically or legitimately
possible. When parties led evidence in this case, clearly they
were conscious of this position, and so, when the High Court
came to the conclusion that the tenancy had not been proved, but
the defendant’s argument also had not been established, it
clearly followed that the defendant was in possession of the suit
premises by the leave and licence of the plaintiff. ….
13. …In our opinion, having regard to the pleas
taken by the defendant in his written statement in
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k 15/28 911_wp_13291.24_as.doccould arise between the parties: is the defendant
the tenant of the plaintiff, or is he holding the
property as the licensee, subject to the terms
specified by the written statement? … we are
unable to see any error of law in the approach
adopted by the High Court in dealing with it.”
21. In G. Nagamma v. Siromanamma (1996) 2 SCC 25 this
Court held that the plaintiff was entitled to plead even
inconsistent pleas especially when, they are seeking alternative
reliefs.
22. To the same effect is the decision of this Court in B.K. Narayana
Pillai v. Parameswaran Pillais, (2000) 1 SCC 712. In that case the
appellant-defendant wanted to amend the written statement by
taking a plea that in case he is not held to be a lessee, he was
entitled to the benefit of Section 60(b) of the Easements Act,
1882. Allowing the amendment this Court held that the plea sought to
be raised was neither inconsistent nor repugnant to the pleas raised in
defence. The Court further declared that there was no absolute
bar against taking of inconsistent pleas by a party. What is
impermissible is taking of an inconsistent plea by way of an
amendment thereby denying the other side the benefit of an
admission contained in the earlier pleadings. In cases where there
was no inconsistency in the facts alleged a party is not prohibited from
taking alternative pleas available in law.
23. Reference may also be made to the decision of this Court in J.J. Lal
(P) Ltd. v. M.R. Murali, (2002) 3 SCC 98 wherein this Court
formulated the following tests for determining whether the alternative
plea raised by the plaintiff was permissible: (SCC p. 111, para 14)
“14. … To sum up, the gist of holding in Firm Sriniwas Ram
Kumar case? (supra) is: if the facts stated and pleading raised in
the written statement, though by way of defence to the case of the
plaintiff, are such which could have entitled the plaintiff to a
relief in the alternative, the plaintiff may rely on such pleading
of the defendant and claim an alternate decree based thereon
subject to four conditions being satisfied viz. (i) the statement of
case by the defendant in his written statement amounts to an
express admission of the facts entitling the plaintiff to an
alternative relief, (ii) in granting such relief the defendant is not
taken by surprise, (iii) no injustice can possibly result to the
defendant, and (iv) though the plaintiff would have been entitled
to the same relief in a separate suit the interests of justice
demand the plaintiff not being driven to the need of filing
another suit.”
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24. The appellant-plaintiff in the case at hand had set up a
specific case that the defendant as also his legal representative
after his demise were occupying the suit premises as licensees
which licence had been validly terminated. In the reply to the
notice, the case of the defendants was that they were in
occupation of the suit premises not as licensees but as tenants.
The plaintiff was, therefore, entitled on that basis alone to ask
for an alternative relief of a decree for eviction on the grounds
permissible under the Rent Control Act. Such an alternative
plea did not fall foul if any of the requirements/tests set out in
the decision of this Court in J.J. Lal (P) Ltd. vs. M.R. Murali
(2002) 3 SCC 98 (sic were met):
24.1. We say so because the written statement filed by the defendant
contained an express admission of the fact that the property belonged to
the plaintiff and that the defendants were in occupation thereof as
tenants.
24.2. At the trial court also the question whether the
defendants were in occupation as licensee or as tenants had
been specifically put in issue thereby giving the fullest
opportunity to the parties to prove their respective cases. There
was no question of the defendants being taken by surprise by
the alternative case pleaded by the plaintiff nor could any
injustice result from the alternative plea being allowed and
tried by the Court. As a matter of fact the trial court had without any
demurrer gone into the merits of the alternative plea and dismissed the
suit on the ground that the plaintiff had not been able to prove a case
for eviction of the defendants. There was thus not only a proper trial on
all those grounds urged by the plaintiff but also a judgment in favour of
the respondent-defendants.
24.3. Last but not the least, even if the alternative plea had not been
allowed to be raised in the suit filed by the appellant, he would have
been certainly entitled to raise that plea and seek eviction in a separate
suit filed on the very same grounds. The only difference may have been
that the suit may have then been filed before the Court of Small Causes
but no error of jurisdiction was committed in the instant case as the
finding recorded by the civil court was that the defendants were
licensees and not tenants.”
(emphasis added)
20. Thus, in Praful Manohar Rele the Apex Court has held that
there is no absolute bar against taking of inconsistent pleas by a party.
It is held that what is impermissible to take of an inconsistent plea by
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way of an amendment if the same results in denying the other side of
the benefit of admission contained in earlier pleadings. It is further held
that in cases where there was no inconsistency in the facts alleged, a
party is not prohibited from taking alternate pleas available in law. In
Praful Manohar Rele the Apex Court therefore held that it was
permissible for Plaintiffs therein to raise alternative pleas of
Defendants being gratuitous licensees and also tenants. The Court held
that Defendants were neither taken by surprise nor any injustice
resulted from such alternative pleas. The Apex Court further held that
a separate suit could have been instituted if alternative plea was not
allowed to be raised. In my view, the judgment of the Apex Court in
Praful Manohar Rele completely answers the issue involved in the
present case and Plaintiffs are entitled to raise alternative pleas that
Defendants are not protected tenants and that they are protected
tenants.
21. Mr. Master has also relied upon judgment of the Apex Court in
Prabhudas Damodar Kotecha (supra) in support of his contention
that the objective of 1976 amendment to PSCC Act was to bring all suits
between landlord and tenant and licensor and licensee, whether under
Rent Act or PSCC Act, are under one roof. The Apex Court held in
paragraphs 57 to 60 as under:
“57. We are of the considered view that the High Court has
correctly noticed that the clubbing of the expression “licensor and
licensee” with “landlord and tenant” in Section 41(1) of the PSCC Act
and clubbing of causes relating to recovery of licence fee is only with a
view to bring all suits between the “landlord and tenant” and the
“licensor and licensee” under one umbrella to avoid unnecessary delay,
expenses and hardship. The act of the legislature was to bring all
suits between “landlord and tenant” and “licensor and licensee”
whether under the Rent Act or under the PSCC Act under one
roof. We find it difficult to accept the proposition that the legislature
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after having conferred exclusive jurisdiction in one court in all the suits
between licensee and licensor should have carved out any exception to
keep gratuitous licensee alone outside its jurisdiction. The various
amendments made to the Rent Act as well as the Objects and Reasons
of Maharashtra Act 19 of 1976 would clearly indicate that the intention
of the legislature was to avoid unnecessary delay, expense and hardship
to the suitor or else they have to move from one court to the other not
only on the question of jurisdiction but also getting reliefs.
58. We are of the view that in such a situation the court also should give
a liberal construction and attempt should be to achieve the purpose and
object of the legislature and not to frustrate it. In such circumstances,
we are of the considered opinion that the expression “licensee” employed
in Section 41 is used in general sense of the term as defined in Section
52 of the Easements Act.
59. We have elaborately discussed the various legal principles and
indicated that the expression “licensee” in Section 41(1) of the PSCC
Act would take a gratuitous licensee as well. The reason for such an
interpretation has been elaborately discussed in the earlier part of the
judgment. Looking from all angles in our view the expression “licensee”
used in the PSCC Act does not derive its meaning from the expression
“licensee” as used in sub-section (4-A) of Section 5 of the Rent Act and
that the expression “licensee” used in Section 41(1) is a term of wider
import intended to bring in a gratuitous licensee as well.
60. We are, therefore, in complete agreement with the reasoning of
the Full Bench of the High Court. In such circumstances, the appeals
lack merits and are, therefore, dismissed. There is no order as to cost.”
(emphasis added)
22. In recent decision in Ganesh Prasad (supra) the Apex Court has
held in paragraphs 42 to 45 and 47 as under:
42. A three-Judge Bench of this Court in the case of Firm Sriniwas
Ram Kumar v. Mahabir Prasad reported in 1951 SCC 136 : AIR
1951 SC 177, has held that a party is entitled to take alternative
pleas in support of its case. Where alternative pleas arose to
some extent from the admitted position of the defendant, such
plea is not impermissible merely because it is inconsistent with
the other plea. It held that a plaintiff may rely upon different rights
alternatively and there is nothing in the CPC to prevent a party from
making two or more inconsistent sets of allegations claiming relief
therein in the alternative. It further observed that although, a Court
should not grant relief to a plaintiff in a case in which there is no
foundation in a pleading on which the other side was not called upon or
had opportunity to meet yet when the alternative case which, thekatkam Page No. 18 of 28
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written statement but was expressly put forward as an answer to the
claim which the plaintiff made in the suit, there would be nothing
improper in giving the plaintiff a decree upon the case which the
defendant himself makes.
43. The view that a plaintiff is entitled to plead even inconsis-
tent pleas while seeking alternative reliefs was reiterated by
this Court in G. Nagamma v. Siromanamma reported in (1996) 2
SCC 25. In that case, a suit for specific performance of an agreement of
re-conveyance was filed by the appellants. Later, an application for
amendment of the plaint was sought stating that the transactions of ex-
ecution of sale deed and obtaining a document for re-conveyance came
to be a single transaction, i.e., it was a mortgage by conditional sale. So,
alternatively plaintiff sought relief to redeem the mortgage. The trial
court and the High Court rejected the same on the ground that the suit
was filed for specific performance and that the amendment would
change the nature of the suit as well as the cause of action. But this
Court reversed the said decision and held that since the plain-
tiff therein was seeking alternative reliefs, he is entitled to
plead even inconsistent pleas and that the amendment of the
plaint would neither change the cause of action nor would af-
fect the relief.
44. In Praful Manohar Rele v. Krishnabai Narayan Ghos-
alkar reported in (2014) 11 SCC 316, this Court followed the deci-
sion in Firm Sriniwas Ram Kumar (supra) and reiterated the
principle that alternative and inconsistent pleas can be
taken by a plaintiff. In that case, the plaintiff therein had alleged
that the defendant therein and his legal representatives were occu-
pying the suit premises as gratuitous licensees and upon termina-
tion of such licence, the plaintiff was entitled to a decree for posses-
sion. The trial court found that defendants were tenants and not li-
censees as alleged by the plaintiff. The 1st Appellate Court recorded
a finding to the contrary, held that the defendants were let into the
suit property by plaintiff on humanitarian grounds and as gratu-
itous licensees and the license was validly terminated by plaintiff. It
thus, negatived the defence of the defendants that they were ten-
ants. In the plaint itself, the plaintiff therein had taken an alterna-
tive plea that he was entitled to vacant possession of the premises
on the ground of bona fide personal need, nuisance, annoyance and
damage allegedly caused to the premises and to the adjoining gar-
den land belonging to him by the defendants. This Court held that
the alternative plea of plaintiff and the defence set up by defendants
was no different from each other. The Court held that it was open to
the plaintiff not only to take a plea of license but also to alterna-
tively plead tenancy in support of his plea for relief of recovery of
possession. The Court held that defendants therein had specifically
admitted that the property belongs to plaintiff and that they were in
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occupation thereof as tenants, and an issue was also framed
whether defendants were in occupation as license or as tenants, and
defendants had full opportunity to prove their respective cases. So,
the defendants cannot be said to have been taken by surprise by the
alternative case pleaded by plaintiff nor could any injustice would
result to them from the alternative plea being allowed and tried by
the Court. It observed that even if the alternative plea had not been
allowed to be raised in the suit filed by appellant, he would have
been certainly entitled to raise that plea and seek eviction in a sepa-
rate suit filed on the very same grounds.
45. In Revajeetu Builders (supra), cited by the learned counsel for
the Appellant, a two-Judge Bench of this Court had an occasion to
deal with Order 6 Rule 17 CPC In that case, the judgment of this
Court in Usha Balashaheb Swami v. Kiran Appaso Swami reported
in (2007) 5 SCC 602, was followed. It referred to the judgment
in Ganesh Trading Co. v. Moji Ram reported in (1978) 2 SCC 91,
wherein at para 50, this Court observed that if a plaintiff seeks to
alter the cause of action itself and introduces it indirectly through
amendment of his pleadings, an entirely new or inconsistent cause
of action, amounting virtually to the substitution of a new plaint or
a new cause of action in place of what was originally there, the
Court will refuse to permit it, if it amounts to depriving the party,
against which a suit is pending, of any right which may have ac-
crued in its favour due to lapse of time.
47. In the event, if the pleas sought to be introduced by
plaintiff by way of an amendment is also the plea, which the
defendant has set up in his written statement and such a
plea of the plaintiff is an alternative plea, even though it is
inconsistent with the original plea, since there is no
prejudice caused to the defendant, the Court is not
precluded from allowing the amendment.
(emphasis added)
23. Thus, introduction of inconsistent pleas by Plaintiff by way of
amendment is something which is not completely prohibited. The ratio
of the judgment in Ganesh Prasad would squarely apply to facts of the
present case where the pleas sought to be introduced by way of
amendment of Plaint is also the plea which the Defendants have set up
in the Written Statement and therefore the plea of the Plaintiffs is an
alternative plea and even though it is inconsistent to the original plea,
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since no prejudice would be caused to the Defendants, such amendment
is needs to be allowed.
24. In my view therefore, incorporation of both the inconsistent and
alternative pleas of Defendants not being protected tenants and they
being protected tenants must be permitted to be raised in the same suit
as the same does not cause any prejudice to the Defendants and more
importantly avoids multiplicity of proceedings. As observed above, if the
amendment is not permitted and in the event the Court holds the
Defendants to be protected tenants, Plaintiffs will have to file a separate
suit and wait for considerable period of time to have their right of
ejectment determined by the Court. On the other hand, if the
alternative pleas are permitted to be raised and canvassed in the same
suit, the Small Causes Court would first conduct an enquiry as to
whether Defendants are protected tenants or not. In the event it holds
that what was leased was mere open piece of land and that Defendants
are not protected tenants, the Court can proceed to decree the suit
under section 41 of the PSCC Act. In the event the Small Causes Court
answers the above issues in the negative by holding that the Defendants
are protected tenants, it can immediately proceed to decide the grounds
of unlawful sub-letting, additions and alterations, non-user and
bonafide requirement raised by the Plaintiffs. Thus far from causing any
prejudice to the Defendants, the amendment would obviate unnecessary
filing of another round of litigation. In my view therefore, the
amendment sought to be incorporated by the Plaintiffs was rightly
allowed and the Appellate Bench has erred in reversing the decision of
the Trial Court.
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25. In Life Insurance Corporation of India v. Sanjeev Builders
Private Limited and Another, Civil Appeal No. 5909 of 2022 decided
on 01 September 2022, the position of law has been explained as under:
“70. ….. (ii) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does not cause
injustice or prejudice to the other side. This is mandatory, as is
apparent from the use of the word “shall”, in the latter part of Order VI
Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudica-
tion of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the
other side,
(b) by the amendment, the parties seeking amendment
does not seek to withdraw any clear admission made by
the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, re-
sulting in divesting of the other side of a valuable accrued
right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be intro-
duced, in which case the fact that the claim would be time barred
becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court
should avoid a hypertechnical approach and is ordinarily required to be
liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly con-
sider the dispute and would aid in rendering a more satisfactory deci-
sion, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or
a new approach without introducing a time barred cause of action, the
amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rec-
tify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow
the prayer. Where the aspect of delay is arguable, the prayer for amend-
ment could be allowed and the issue of limitation framed separately for
decision.
(x) Where the amendment changes the nature of the suit or the cause of
action, so as to set up an entirely new case, foreign to the case set up in
the plaint, the amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in the plaint, and is
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predicated on facts which are already pleaded in the plaint, ordinarily
the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the
court is required to be liberal in its approach. The court is required to
bear in mind the fact that the opposite party would have a chance to
meet the case set up in amendment. As such, where the amendment
does not result in irreparable prejudice to the opposite party, or divest
the opposite party of an advantage which it had secured as a result of
an admission by the party seeking amendment, the amendment is re-
quired to be allowed. Equally, where the amendment is necessary for
the court to effectively adjudicate on the main issues in controversy be-
tween the parties, the amendment should be allowed. (See Vijay Gupta
v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”
26. Reliance by Mr. Tambe on judgments of this Court in Savitribai
Vishnupati Vaske & Ors. (supra) and Narendra Harial Jethwa
(supra) to bring home his point of lease of open piece of land being not
covered by the provisions of the Maharashtra Rent Control Act, to my
mind, appears to be unnecessary. Mr. Master fairly does not dispute this
position that open piece of land is not covered by definition of the term
‘premises’ under section 7(9) of the MRC Act and that therefore suit for
eviction filed under general law of Transfer of Property Act, 1882 is
maintainable for eviction of lessees/tenants of such open plot. Mr.
Tambe has sought to suggest the description of the suit property is not
amended, which continuous to be open piece of land and that therefore
eviction under section 16 of the MRC Act cannot be sought by amending
the Plaint. In my view, the plea of eviction under section 16 of the MRC
Act is merely an alternative plea. Defendants have contended in their
Written Statement that suit property is not merely open piece of land
and comprises of constructed garage and that therefore the same is
covered by definition of the term ‘premises’ under section 7(9) of the
MRC Act. In the event of the Trial Court accepting the said defence of
Defendants, provisions of MRC Act would become applicable to the
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relationship between Plaintiffs and Defendants. This is why alternate
plea for eviction under section 16 of the MRC Act is sought to be added
by way of amendment to the Plaint.
27. Mr. Tambe has contended that doctrine of election would be
attracted in the present case and has relied upon judgment of Single
Judge of the Calcutta High Court in Hiralal Alias Hiranand (supra),
in which it is held in paragraph 26 as under:
“26. The doctrine of election applies to cases when a man as against
another has two alternative but mutually exclusive courses to resort to
and he is to make an election between the two. If he by his conduct
induces the other man to believe that he is pursuing a certain course
leaving aside the other and as a result of it that induced other man
alters his course of action he is not permitted to subsequently alter his
stand by resorting to the other course which he had intentionally
decided not to follow. Spencer Bower and Turner in their celebrated
work on estoppel by representation had explained the essence of the
doctrine of election:
“It is of the essence of election that the party electing shall be
‘confronted’ with two mutually exclusive courses of action between
which he should mast, in fairness to the other party, make his choice.
In election he is always found confronted by a choice of two alternatives
one of which he must eventually choose, to the exclusion of the other.”
28. In my view, the doctrine of election would have no application to
the present case as the doctrine of election applies essentially to a case
where mutually exclusive courses are available to a person and, if by his
conduct, he makes the other person to believe that he is pursuing one of
the two courses leaving aside the other. The result of such act is that he
induced the other person to alter his course of action and subsequently
he cannot be permitted to alter his own stand by resorting to other
course which he intentionally decided not to follow. In the present case,
Plaintiffs’ course of action of treating the suit property as open piece of
land and treating Defendants as not protected tenants has not resulted
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in Defendants believing Plaintiffs’ act as abandonment of right of
ejectment under section 16 of the MRC Act. Therefore, doctrine of
election has no application in the present case. In fact the principle of
estoppel by invoking doctrine of election is not applicable in the present
case as Plaintiffs are otherwise free to institute a fresh suit under
section 16 of the MRC Act in the event of their suit under section 41 of
the PSCC Act being dismissed for want of jurisdiction or as being not
maintainable. In my view therefore, neither doctrine of election nor
judgment of Calcutta High Court in Hiralal Alias Hiranand have any
application to the present case.
29. Mr. Tambe has strongly objected amendment being allowed after
commencement of Trial of the suit. The issues in the present suit have
been framed on 15 October 2020 whereas the application for
amendment of plaint is filed on 11 March 2021. No doubt the Trial has
commenced with framing of issues. However, in the present case, none
of the parties have filed evidence. In that sense framing of issues is
merely a first step taken towards commencement of the trial. This is not
a case where the Defendants have led evidence or have cross-examined
Plaintiffs’ witness and have extracted any admissions from them. The
amendment is not aimed withdrawal of any admission given in favour of
the Defendants. In my view therefore, mere framing of issues is not a
ground for denial of opportunity to amend the Plaint. Even otherwise
there is no absolute prohibition under provisions of Order VI, Rule 17 of
the Code of Civil Procedure, 1908 (CPC) in permitting amendment
after commencement of trial. All that is required to be done by party
seeking amendment is to show due diligence. Considering the facts and
circumstances of the present case, Plaintiffs cannot be accused of
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inordinate delay in moving application for amendment. For these
reasons reliance by Mr. Tambe on judgment of the Apex Court in
Basavraj (supra) will have no application. In that case, the amendment
was sought to be introduced at the fag-end of the suit and delay in
moving amendment was one of the principal reasons for declining the
same. The case also involved change in the nature of suit which was
initially filed for partition and separate possession and by way of
amendment, the relief relating to declaration of compromise decree
being null and void was sought to be added. The Apex Court, in the
facts of the case, held that prejudice will be caused to the Defendants
therein. The judgment in Basavraj, rendered in the facts of the case,
would have no application to the present case. On the contrary, Mr.
Master has relied on judgment of this Court in Smt. Laxmibai
Popatlal Shah (supra) in which this Court has held in paragraphs 15
and 16 as under:
“15) In my view, once the proposed amendment is found to be relevant
for the purpose of determining the real question of controversy between
the parties, the same ought to have been allowed by the Trial Court.
The delay in moving the amendment application could have been taken
care of by imposing costs on the Plaintiffs.
16) Mr. Kumbhat, has submitted that the evidence of the Original
Plaintiff has already been recorded. On the contrary, it is Mr. Thorat’s
contention that during currency of his cross-examination, Original
Plaintiff has passed away and that the current Plaintiffs will have to
again lead evidence in support of their claim. In that view of the matter,
no prejudice would be caused to the Defendant if the proposed
amendment in paras-2(a) to 2(e) is allowed to be incorporated in the
plaint. As rightly contended by Mr. Thorat, delay in decision of the suit
enures to the benefit of the Defendant who is occupying the suit
premises. I am therefore of the view that the proposed amendment as
incorporated in paras-2(a) to 2(e) needs to be granted by imposition of
costs on the Plaintiffs.”
30. In the present case as well, apart from absence of any prejudice
being caused to the Defendants, any delay caused in decision of the suit
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enures to the benefit of Defendants who are occupying the suit
premises.
31. The conspectus of the above discussion is that the amendment is
necessary for determining the real question of controversy between
parties. Plaintiffs can be permitted to raise alternative and inconsistent
pleas leading to same relief. The amendment does not change the
nature of suit nor does it cause any prejudice to the Defendants. Though
there is some delay in filing the application for amendment, Defendants
can be compensated by imposition of costs. In my view therefore, the
Appellate Bench has palpably erred in reversing the decision of the
Trial Court, which had allowed the application for amendment to the
Plaint. The order passed by the Appellate Bench of Small Causes Court
is thus indefensible and is liable to be set aside.
32. In view of determination of correctness of the order passed by this
Court, it is not necessary to go into the issue of maintainability of
Revision Application before the Appellate Bench in respect of the
challenge to the order allowing amendment of Plaint. The issue is
accordingly kept open to be decided in appropriate case.
33. Resultantly, the Writ Petition succeeds, and I proceed to pass the
following order:
O R D ER
i) Judgment and order dated 1 August 2024 passed by
Appellate Bench of the Small Causes Court in Revision
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Causes Court on Application at Exhibit-18 is confirmed.
ii) Plaintiffs shall pay costs of Rs.25,000/- to the
Defendant No.2, who had filed Revision Application before
the Appellate Bench of Small Causes Court, within a period
of four weeks from today.
34. With the above directions, the Writ Petition is allowed. Rule is
made absolute.
(SANDEEP V. MARNE, J.)
Digitally signed
by SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.10.10
15:22:23 +0530
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