D.C. Srivastava, J.@mdashThis is tenant''s revision u/s 29(2) of the Bombay Rent Act.
2. The brief facts essential for the disposal of this revision are as follows:
The portion of an open land belonging to the landlord-respondent was let out to the defendant No. 1 revisionist on annual rent of Rs. 8/-. The
defendant No. 1 raised super structures out of his own fund. There was allegation that the defendant No. 1 also encroached upon another land
belonging to the landlord. The suit for eviction was filed by the landlord on five grounds. The first was that the defendant No. 1 was in arrears of
rent with effect from 1-4-1970. Notice was given on 13-4-1976. The arrears were not paid to the landlord by the defendant No. 1 within a month
of service of notice nor any reply to the notice was given. The second ground for the eviction was that the tenant-in-chief was creating nuisance or
annoyance to the landlord. The third ground for eviction was that the land was reasonably and bona fide required by the landlord for raising his
building thereon. The fourth ground for eviction was that the defendant No. 1 had illegally sub-let the land in question to the defendant No. 2 and
the last ground was denial of title of the landlord by the tenant-defendant No. 1. Of course, this plea was taken during the pendency of the suit by
getting the plaint amended.
3. The suit was resisted by the defendant No. 1 denying the allegation of nuisance, sub-letting and being in arrears of rent. It was also denied that
the land in suit was reasonably and bona fide required by the landlord for erecting his building. Regarding denial of title, the case of the tenant-in-
chief in the written statement was that he is not only the owner of super structure, but also the owner of the land inasmuch as the land was
purchased from the father of the plaintiff-landlord.
4. The trial Court negatived the contention of the landlord on the allegation of nuisance, sub-letting, denial of title and the land being bona fide
required by him for constructing the building. However, regarding arrears of rent the trial Court found that the case was covered by Section 12(3)
(b) of the Bombay Rent Act, and that the defendant was not entitled to any protection under the aforesaid Section, as such decree for eviction was
passed.
5. The matter was taken up in Appeal. The appellate Court dismissed the Appeal without disturbing any finding of the trial Court. It is, therefore,
this revision.
6. The findings of the two Courts below regarding allegations of landlord on nuisance, sub-letting, denial of title and reasonable and bona fide
requirement of the landlord were not agitated in this revision. Hence, these allegations which were negatived by the two Courts below have
become final.
7. So far as the decree of eviction on the ground of arrears of rent is concerned, it was assailed by learned Counsel for the revisionist on the
ground that the trial Court fell in error in rejecting the application dated 16-6-1981 moved by the revisionist seeking amendment in his written
statement. In short, proposed amendment in the written statement was nothing but denial of title of the landlord and setting up his own title on the
basis of title deed.
8. Learned Counsel for the revisionist has vehemently argued that this amendment application should have been allowed by the trial Court and the
appellate Court also committed an error of law in not allowing the amendment and remanding the case. Reliance has also been placed upon a case
of Satish Chandra Saxena and Others Vs. Krishna Prasad Saxena and Another, . Apparently, this case is distinguishable on facts. Here the
defendant in the original written statement pleaded that he was owner of the land in dispute while in proposed amendment he wanted to delete the
plea by incorporating another plea that he become owner by adverse possession. Such amendment was granted by the High Court on the
reasoning that the proposed amendment did not amount to resiling from previous admission. The defendant in the original written statement already
pleaded that he was owner of the land. If by subsequent amendment, he wanted to delete that plea and to assert that he is owner by adverse
possession, the plea of ownership was not given up by the proposed amendment. Instead of alleging that he was owner by title deed, he wanted to
plead that he become the owner by adverse possession. Thus, the High Court found that it was not a case where the defendant wanted to resile
from his earlier admission as such amendment was granted. In the case before me, it is not a case where any previous admission was sought to be
withdrawn.
9. Certain observations and principles are to be kept in mind while granting amendment. The Courts, time and again, have laid down that in matters
of granting amendment the Court should take liberal view, but that does not mean that every amendment should be granted. Cardinal principle for
granting amendment is that such amendment is essential for determination of real controversy between the parties. Further, such amendment should
be bona fide. If on the other hand, the amendment is found to be mala fide, it is liable to be rejected. Simply because the amendment application is
moved at a late stage, this does not constitute a good and effective ground for rejecting the amendment application. Further, if a plea has already
been taken either in the plaint or in the written statement and the said plea is not vague the amendment cannot be allowed simply on asking of a
party that he wants to incorporate such amendment. Unless there is ambiguity in the existing pleading which requires clarification delayed
amendment should not be granted. Likewise, if amendment is moved to delay the proceedings and disposal of the suit, it should always be refused.
10. If there principles are kept in mind there should be no difficulty in coming to the conclusion that the amendment application was rightly rejected
by the two Courts below.
11. It may also be mentioned that no revision was filed against the order of the trial Court rejecting the amendment application. The said order of
rejection was duly tested by the appellate Court in Appeal and that order does not suffer from any error of law. The reason is that the lower
appellate Court correctly observed that the said application was moved at a very late stage on the date of arguments after closing of evidence by
the parties and it was an attempt to delay the disposal of the suit It also rightly observed that there was specific stand and pleading in the written
statement of the defendant No. 1 that he was the owner not only of the super structure, but also of the open land. In face of this plea, there was
definite case pleaded in the written statement that the defendant No. 1 was the owner of the land as well as super structure. The contention that the
amendment was necessary at a late stage because when the written statement was filed the document of title was not available to the plaintiff is not
sound. The document of title is nothing but evidence and evidence is not to be pleaded in the written statement. If for some reason or the other the
document of title, which should have been with the defendant, was misplaced or was traceable, it could have been filed as additional evidence
before the trial Court by moving application Likewise, request could be made before the Appellate Court for accepting additional evidence in
Appeal. That was not done.
12. Since the plea of defendant''s ownership was already clear and specific in the written statement, it required no clarification and for this reason
also the amendment could be rejected. Likewise, the proposed amendment was not essential for disposal of real controversy between the parties
inasmuch as such pleading was already contained in the written statement.
13. Learned Counsel for the revisionist contended that in case amendment would have been granted the jurisdiction of the Rent Court would have
been ousted. However. I find that no such plea was taken in the proposed amendment which was sought at a very late stage. Consequently, the
plea of want of jurisdiction cannot be permitted to be raised at this stage without any pleading to that effect.
14. Even if such plea is permitted to be raised, it has no substance. Jurisdiction of the Court is to be determined on the allegations made in the
plaint and the defendant simply by denying the jurisdiction of the Court cannot say that the jurisdiction is actually ousted. It was a case where
eviction was sought on the grounds contemplated under Sections 12 and 13 of the Bombay Rent Act. It was in respect of open land. Such suit
was prima facie triable by the Rent Court. If the dispute regarding relationship of landlord and tenant was proposed to be raised that dispute also
could be decided by the Rent Court. Incidentally, the question of title also could be seen by the Rent Court in denial of relationship of landlord and
tenant between the parties.
15. For the reasons given above. I do not find any substance in the contention that the amendment application was wrongly rejected.
16. It was also contended that if the amendment would have been allowed probably the defendant No. 1 would not have been required to pay any
rent. However, this possibility on the facts and circumstances of the case also does not arise.
17. So far as the finding regarding applicability of Section 12(3)(b) of the Act is concerned, I find that the judgments and decrees of the two
Courts on this point do not suffer from any error of law. According to the plaintiff, it was annual tenancy at Rs. 8/-. Consequently, Section 12(3)(a)
was not attracted Section 12(3)(a) is attracted only in monthly tenancy. When it was not a case of monthly tenancy, then failure of the defendant to
reply notice and his further failure to raise dispute regarding the standard rent is of no consequence. Section 12(3)(b) on the facts and
circumstances of the case is attracted, because it was not pleaded by the tenant, that rent claimed in the notice was paid. Wife of the tenant-in-
chief who used to pay the rent was not examined. No rent receipt was filed by the defendant No. 1. The two Courts below further found from the
evidence on record that for non-compliance of mandatory provision of Section 12(3)(b) the tenant was not entitled to statutory protection against
eviction.
For the reasons given above, I do not find any merit in this revision which is hereby dismissed. Parties shall bear their own costs.
