This writ petition is preferred under Article 227 of the Constitution of India challenging the order passed on Application Exh. 25 in HRP Suit no. 1508 of 2011, whereby the learned Judge, Small Cause Court, Ahmedabad vide Order dated 16th February 2012, rejected the application for amendment of the plaint.
To briefly states the facts - the petitioners herein are the original plaintiffs, who filed HRP Suit No. 1508 of 2011, wherein an application for interim injunction has been moved by the petitioners against the respondent inter alia praying for restraining the respondent from taking forcibly, the possession of the property by pleading that they are the tenants and the respondent is the owner of the suit property. The petitioners entered into the suit property on a monthly rent of Rs. 1000/- in the year 1995. This application for interim injunction and the suit had been preferred. It is also the case of the petitioners that LIC policy obtained in the year 1999 shows address of the suit property and the municipal property tax is also being paid regularly by them.
Defendant filed written statement mainly contending that the respondent stays in USA from 1997 and visit India frequently. It is the say of the respondent that he became owner of the suit property from 10th August 1996 and the possession letter was issued to him on 31st December 1996 by the Chairman of Panchratna Apartments Owners' Association. The petitioner no.1 is the son of the brother of respondent-husband, who was permitted to reside in the property gratuitously and he never paid any rent.
After filing of such a reply, an application for amendment has been preferred urging the Court that due to typographical error "June 1998", the occupancy is mentioned from the "year 1995".
This was seriously condemned by the otherside mainly on the ground that this will jeopardize the interest of the respondent. It was calculated act on the part of the petitioners herein to seek such an amendment when, in fact, he came to know about purchase on the part of the respondent in the year 1996. Heavily relying on the affidavit of the third party, a request is made to examine the facts cumulatively, while considering this writ petition.
Learned advocate appearing for the respective parties have been heard at length and on examining the material available on the record, as also the order impugned, it can be noted that the case of the petitioner all throughout is that they are in occupation of the suit premises from the year 1995 and they have been enjoying tenancy @ Rs. 1000/= per month. In an application for injunction also, it can be noted that tenancy is pleaded from the year 1995. The written statement is reflective of the fact that in the year 1995, the respondent was not the owner and only on 10th August 1996, the said property has been purchased by way of a registered sale deed and the possession letter was handed over on 31st December 1996. There are various other contentions raised, challenging the tenancy. It is also disputed that in the Municipal Property Tax Bills nowhere; as tenants, or even occupants also, names of the present petitioners are reflected.
As can be noted from the record, written statement has been filed on 29th November 2011 and an application for amendment has been made by the petitioners on 6th January 2012. Reliance is also placed on LIC policy taken on 19th February 1999 with a further request that allowing this typographical error would not change in any manner the nature of the suit, nor would it prejudice the right of either side. The Court, however, in its impugned order was not satisfied with the averments made in the application for amendment and therefore, it rejected the application vide its Order dated 16th February 2012. To this Court, there does not appear to be any error in rejecting the request made for amendment.
Ordinarily, when an application for amendment is made, the Court is required to consider as to whether the same is necessary for determining the controversy between the parties and if the same does not change the nature of the suit and also if no prejudice is caused to the defence of either side, the same is to be allowed as the whole object of this provision is to ensure that the controversy which is at large before the Court gets resolved and there is no multiplicity of litigations between the parties.
This Court is required to decide the issue in a petition preferred under Article 227 of the Constitution. On examining the material on record, the objection of the present respondent to the request made for amendment can be well appreciated. The entire thrust in the written statement is to the very claim of the tenancy from 1995, in wake of the fact that the purchase of the suit property has been made by the respondent in the year 1996, this amendment, as is attempted to be made out is not so innocuous, and therefore, when the plaintiffs-petitioners have attempted to dismiss the same as a typographical error, such stand is not to be held tenable. On cumulative reading of the material on the record, it is not found acceptable to permit such stand and allow it to pass it over as a mere typographical error; as suggested in the application for amendment. Allowing such an amendment would not only change the nature of the suit but as rightly pointed out, it may also seriously prejudice the defence of the otherside. Resultantly, this petition being devoid of any merit, deserves no entertainment and the same accordingly stands dismissed with no order as to costs.
{Ms.
Sonia Gokani, J.} Prakash* Top