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IN THE COURT OF SMALL CAUSES AT BOMBAY

ORDER BELOW EXHIBIT­94

IN
RAE & R SUIT NO. 563/1094 OF 1997

SMT. MALTI MADHAV DESAI

(deleted)
1a. SMT. PURNIMA SHANTILAL
DEDHIA (JAIN) & ORS ...PLAINTIFFS

VERSUS

DR. NIRANJAN UMESHCHANDRA JOSHI

& ORS ..DEFENDANTS

Mamta Shah Advocate for Plaintiff Nos. 1(a) to 1(c)

Holding Advocate for S. B. Sabnis Advocate for defendants

Coram :­ R. B. Rehpade, Judge

Court room No. 8
21st November, 2017

ORDER

1. This is an application for amendment of written statement

filed on behalf of defendant Nos. 2(A) to 2(C). These defendants
adopted the written statement filed by defendant No.2.

2. The suit is filed for eviction. Defendant Nos. 1 and 2 have

filed written statement on record. Subsequently, defendant No.2
died. Consequently, defendant No.2(A) to 2(C) were brought on
record. The issues were framed. The evidence was led by the
plaintiffs. The plaintiffs' evidence is over. Defendant No.1 has filed

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his examination­in­chief on affidavit. He produced Assignment Deed

dated 14th May, 1975 alongwith the application for leading
secondary evidence. At that time, the objection was raised by the
plaintiffs that there is no reference of said Assignment Deed in the
written statement. This prompted defendant Nos.2(A) to2(C) to file
the present application. defendant Nos.2(A) to2(C) have made it
clear that plea of joint tenancy has already been taken in written
statement. Deed of Assignment dated 14 th May, 1975 is the
document upon which the defence of the defendant Nos.2(A) to
2(C) is based. In view of this, defendant Nos.2(A) to2(C) want to
amend their written statement and bring on record averment as
regard to Deed of Assignment. According to defendant Nos.2(A)
to2(C), no prejudice would be caused to the plaintiffs if the
proposed amendment is allowed. Moreover, the proposed
amendment is necessary for final decision of the suit.

3. Perused the application and say of the plaintiffs.

4. Learned Advocate for defendant Nos.2(A) to2(C) vehemently

submitted that in the written statement there is plea of joint
tenancy. Deed of Assignment dated 14 th May, 1975 is the document
which indicates joint tenancy. Although it is not necessary to make
reference to Deed of Assignment in written statement, by way of
abundant precaution defendant Nos.2(A) to2(C) want to bring that
fact on record by way of the proposed amendment. According to
learned Advocate for defendant Nos.2(A) to2(C), the proposed
amendment does not change the nature of the suit and is very

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necessary for deciding the suit finally. She pointed out that the suit
is of the year 1997, therefore, amended provisions of Order 6, Rule
17 of the Code of Civil Procedure would not be applicable to the
case on hand.

5. In support of her contentions , she relied upon the following

judgments :­

A)Baldev Singh & Ors V/s Manohar Singh & Anr (2006(5) ALL
MR (S.C.) 107). In the said case, Hon'ble the Apex court has
observed that court should be extremely liberal in granting the
prayer for amendment of pleadings unless serious injustice or
irreparable loss is caused to other side.

B) In case of Bharat Petroleum Corporation Ltd V/s Precious

Finance Investment Pvt. Ltd. ( 2006(6) Bom. C. R. 510), Hon'ble
Bombay High Court has observed that the Court should be liberal in
deciding application for amendment in cases where other side can
be compensated in terms of money.

C) Rajesh Kumar Aggarwal & Ors V/s K. K. Modi & Ors (2006(5)
ALL MR (S. C) 185) wherein Hon'ble Supreme Court has observed
that it is primary duty of the Court to decide whether such an
amendment is necessary to decide the real controversy between the
parties. If it is , the amendment will be allowed; if it is not amended
will be refused. On similar line, observations are made by Hon'ble
Bombay High Court in case of Vijay Agarwal and others V/s
Harinarayan G. Bajaj and others ( 2013(4) Mh. L. J. 298).

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D) Baburao s/o Sahebrao Deshmukh V/s Maharashtra

Insecticides Limited, through its Chief Officer & Ors (2004) Vol.
106 (3) Bom. L. R. 587 wherein Hon'ble Bombay High Court has
observed that amendment can be carried out even at the appellate
stage.

6. Thus, learned Advocate for defendant Nos.2(A) to 2(C)

prayed that the proposed amendment be allowed.

7. As against this, learned Advocate for the plaintiffs vehemently

submitted that the application is filed at the belated stage. Deed of
Assignment is the document upon which defendants' defence is
based, therefore, that document should have been filed earlier . He
pointed out that Deed of Assignment is of the year 1975 whereas the
suit is filed in the year 1997. In this backdrop, defendant Nos.2(A)
to2(C) knew the existence of Deed of Assignment, therefore, the
proposed amendment should have been made earlier. He prayed
that the application be rejected.

8. The points for determination and my findings thereon are as

under :­

POINTS FINDINGS
1 Is proposed amendment necessary for deciding
controversy involved in the suit ? Yes
2. What Order ? Application is
allowed.

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REASONS

AS TO POINT NOS. 1 AND 2

9. It is to be noted that defendant Nos.2(A) to2(C) have already

taken a stand in the written statement that there was joint tenancy.
One of the documents which indicates about the joint tenancy is the
Deed of Assignment dated 14th May, 1975. Defendant Nos.2(A)
to2(C) want to rely on the said Deed of Assignment. It is submitted
by learned Advocate for the plaintiffs that deed of Assignment is
very crucial document for defendant Nos.2(A) to2(C). In this
backdrop, one thing that appears to be extremely clear that Deed of
Assignment is an important document so far as the present case is
concerned. It is to be noted that the suit is of the year 1997.
Therefore, amended provisions of Order 6, rule 17 of the Code of
Civil procedure are not applicable. The present Application would
be governed by un­amended provisions of Order 6, Rule 17 of the
Code of Civil Procedure wherein the amendment is permissible at
any stage. I am of the considered view that Deed of Assignment is
an important document which has direct bearing on defence of
defendant Nos.2(A) to2(C). Therefore, said document is necessary
for deciding controversy involved in the suit.

10. I am not oblivious of the fact that it was possible for

defendant Nos.2(A) to2(C) to make reference to Deed of Assignment
in written statement. However, I am of the view that considering the
importance of Deed of Assignment,defendant Nos.2(A) to2(C) can

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be permitted to amend the written statement. The plaintiffs have

already closed their evidence. In this backdrop, the plaintiffs
deserves to be compensated in monetary terms. Consequently, I
answer point No.1 in the affirmative and proceed to pass following
order.

ORDER

1. Application (exhibit no.94) is

allowed subject to costs of Rs. 5000/­
(Rs. Five Thousand only).

2. Defendant Nos.2(A) to 2(C) are

directed to carry out amendment in
written statement as per schedule
annexed to the application on or
before next date.

(R. B. Rehpade)
Judge
21.11.2017 C. R. No. 8

Order dictated on :­ 21.11.2017

Order transcribed on :­ 21.11.2017
Order checked &Signed on:­ 22.11.2017

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