V.C. Daga, J.
1. Rule, returnable forthwith.
By consent, petition is heard finally.
2. This petition is directed against the order dated 12th November, 2003 passed by the Small Causes Court at Mumbai in Interim Notice No. 4099 of 2003 in R.A.E. and R. Suit No. 9/15 of 1998, whereby the interim notice seeking amendment to the plaint came to be dismissed.
The Facts:
3. The facts giving rise to the present petition are as under :
That the plaintiff has filed suit for possession of the suit premises being room No. 2 located on the first floor of the House No. 100/B situated at Navnit Chowk, Worli Koliwada, Worli, Mumbai-400 025, contending that the defendant is a tenant; who did not pay arrears of rent and permitted increases from March, 1994 till the date of filing of the suit as such he has rendered himself liable for eviction from the suit premises under the provisions of the Bombay Rent Act.
4. On being noticed, the defendant appeared and filed his written statement contending that the suit premises is a newly constructed and/or erected room, constructed by the defendant himself; and he being the owner of the said premises the suit for eviction is liable to be dismissed.
5. The petitioner/original plaintiff, after receipt of written statement, realised that the house number mentioned in the plaint was erroneous. The correct number ought to have been 129/C rather than 100/B as stated in the plaint. He, thus, took out interim notice and filed affidavit in support thereof stating on oath that the plaintiff has issued separate notice under Section 12(2) of the Bombay Rent Act prior to the suit and the said notice was replied by the defendant through his advocate. In the said correspondence suit premises was described as room No. 2 situated on the first floor of house No. 129/C. The reply given by the defendant through his advocate also makes a reference to house No. 129/C. The plaintiff, therefore, moved motion for amendment and in the affidavit in support thereof stated that in para-1 of the plaint he has wrongly described house number as 100/B through oversight and mistake. He further stated that he is not the owner of house No. 100/B but he is the owner of house No. 129/C. As such he sought correction in the plaint by substituting house No. 100/B with that of house No. 129/C. This amendment sought by the plaintiff came to be rejected by the trial Court vide its order dated 12th November, 2003. This order is a subject matter of challenge in this petition filed under Article 227 of the Constitution of India.
The Submissions :
6. Mr. Dani, learned counsel appearing for the petitioner urged that there was bona fide mistake crept in the plaint, if the amendment is allowed the said amendment is not going to change the nature of the suit. He further submitted that admittedly, he is not the owner of house No, 100/B and, therefore, he could not have filed suit describing the suit property as house No. 100/B. He further pointed out that in all the correspondence between the rival parties, both have referred to house No. 129/C and not house No. 100/B as such he submitted that the mistake crept in the plaint needs to be corrected at the earliest opportunity. He further submitted that if the amendment is allowed no prejudice is going to be caused to the defendant.
7. Mr. Salve, learned counsel appearing for the respondent/original defendant vehemently opposed this petition and went to the extent of filing written submissions contending; how on merits the suit of the plaintiff is untenable. He, thus, tried to support the impugned order.
Consideration:
8. Having examined the impugned order and having considered the proposed amendment in the light of submissions of the rival parties, it cannot be said that the proposed amendment shall cause any prejudice to the respondent/defendant. If the proposed amendment is not allowed, then, it is bound to cause prejudice to the plaintiff. His suit is bound to fail. The suit is yet to go for trial. Admittedly, the plaintiff is not the owner of room No. 2 of house No. 100/B. He is the owner of house No. 129/C. In all the correspondence between the parties the house in question was referred to as house No. 129/C. In this view of the matter, it cannot be said that if the proposed amendment is allowed the defendant would be taken by surprise or that any prejudice would be caused to him. It is needless to mention that if the amendment is allowed in the pleadings it would avoid uncalled for delay and multiplicity of the litigation.
9. The Apex Court in the case of A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation, held :
The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal, (1987) 19 QBD 394 : 56 LJ QB 621. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation : See Charon Das v. Amir Khan AIR 1921 PC 50 : ILR 48 Cal 110 and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., .
The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rule of procedure is to decide the rights of the parties and not to punish them for their mistakes, Cropper v. Smith (1984) 26 ChD 700 : 53 LJ Ch 891 : 51 LT 729 and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended, Kisandas Rupchand v. Rachappa Vithoba Shilwant, ILR (1909) 33 Bom 644 : 11 Bom LR 1042 approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, .
10. In Ganesh Trading Co. v. Moji Ram, , the Apex Court has held as under :
“4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omission. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.”
11. In the circumstances, petition is allowed. The petitioner/plaintiff is allowed to amend the plaint. The amendment to be carried out within two weeks from the date of receipt of writ of this order by the trial Court. Rule is, thus, made absolute in terms of this order with no order as to costs.