JUDGMENT
D.K. Deshmukh, J.
1. By this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 13.1.1997 passed by the Joint Civil Judge, Junior Division, Thane, below Ex. 342 in Regular Civil Suit No. 809/1994. At Ex. 342 is an application filed by the respondent, who is the defendant in the civil suit, for permission to amend its written statement. The trial court, by its order impugned in this petition, has allowed the application for amendment of the written statement filed by the respondent.
2. Regular Civil Suit No. 809/1994 has been filed by the present petitioner claiming therein that it is the owner of land surrounded by boundary walls bearing Survey No. 95, Hissa Nos. 3 & 9, Survey No. 96, Hissa Nos. 1 and 2, and Survey No. 105, Hissa No. 4, totally admeasuring about 20,681 sq. metres, situate at Mohanji Sunderji Road, Thane Taluka, within the limits of the Municipal Corporation of the City of Thane. It is further claimed that the respondent-defendant is the monthly tenant in respect of the suit property. In the suit, the petitioner-plaintiff sought a decree of possession against the defendant on several grounds, including the ground of putting up of permanent structure in the suit premises. In the written statement filed on behalf of the defendant, it is contended by the defendant that the parties to the suit were part and parcel of a group of companies known as “House of Malhotras” belonging to and owned by Malhotra family. It is further stated that V.P. Malhotra, S.N. Malhotra and R.K. Malhotra the three sons of Harbanslal Malhotra, were, at the relevant time, in management and control of various companies comprising in the said group, including the plaintiff and defendant company. It was further stated that the said 3 brothers, through the companies owned by the House of Malhotras had purchased/acquired various properties at various locations according to their convenience for the use of various companies of the group. It is further stated that invariably such properties were purchased not necessarily by the company which intended to use such properties. It is further stated that the suit property is one such property. It is further urged that the suit property is adjoining the property owned and possessed by the defendant company and is also enclosed by common boundary wall. It is stated that since the purchase of the property in the name of the plaintiff, the property in question was and is exclusively and absolutely used by the defendant company. It is further stated that the defendant uses and enjoys the property as deemed owner. It is further stated that the plaintiff has acknowledged and admitted this position by its conduct. It is further stated that though the defendant is deemed owner of the suit premises, for the sake of convenience and for accounting purposes, the group company in whose name the property stands is treated as the landlord and the user company as the tenant. Only for the purpose of accounting, the payment of a very nominal rent is made. It is further urged that there was a memorandum of understanding arrived at between Ved Prakash Malhotra, Surinder Nath Malhotra and Rajinder Kumar Malhotra, dated 19th August, 1985, whereby it was acknowledged and admitted that the property in possession of each of the groups should be listed out and the same be valued. Thus, in short, it is the case of the respondent-defendant in the written statement that it is the owner of the suit property and not its tenant. By the application for amendment, the defendant sought addition of paragraphs 7(a) and 7(b). It is pleaded in paragraph 7(a) of the amendment application that though the plaintiff in the suit is claiming that the defendant is tenant of the suit premises, the plaintiff in its surrejoinder filed in Company Petition No. 57/1992 had stated that the property was not rented out to the defendant at any time. It is further stated that therefore the stand taken by the plaintiff in the plaint and the stand taken in its surrejoinder in relation to the suit property is contradictory. It is further stated in paragraph 7(a) that entries in the books of accounts showing outstanding rents against the defendant were taken in order to save the property from the provisions of the Urban Land (Ceiling & Regulation) Act, 1974. The entries were taken in the year 1975.
2. The application for amendment was opposed by the petitioner. It was contended by the petitioner that the amendment sought is mala fide. It was further stated that the amendment sought is not necessary for deciding the controversy between the parties. It was contended that the amendment is being introduced at a very late stage when the plaintiff and the defendant both have closed their evidence and when now the plaintiff is examining witnesses in reply. It was stated that the explanation given by the respondent for making an application for amendment so late is not correct. It was further stated that the case sought to be introduced by the amendment was known to the defendant from the very beginning; still the plea was not taken at earlier point of time. Therefore, the plaintiff-petitioner urged that the amendment is mala fide. It was also urged that it has the result of watering down the effect of the admissions made by the defendant. The trial court after hearing both the sides, by its order dated 13.1.1997, allowed the amendment.
3. Learned Counsel appearing for the petitioner urged before me that under the provisions of Order VI, Rule 17 of the Code of Civil Procedure (C.P.C.), the court can allow either party to alter or amend pleadings in such manner and on such terms as may be just and that all amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. In the submission of the learned Counsel for the petitioner, in the civil suit, the real question in controversy between the parties is whether the defendant is the tenant of the suit premises or the defendant is the deemed owner as claimed by the defendant in the written statement. Learned Counsel further urged that for determining this real controversy between the parties, it is not at all necessary for the defendant to amend its written statement by adding paragraphs 7(a) and 7(b). So far as the part of the amendment relating to the provisions of the Urban Land Ceiling Act is concerned, the learned Counsel submitted that it is contradictory to the stand taken in the written statement inasmuch as it is the stand of the defendant in the written statement that since the purchase of the property, it is occupying it and that only for the purpose of accounts it is shown as tenant. In the submission of the learned Counsel, therefore, as the property was purchased in the year 1962, there was no question of taking entries in the year 1975 after commencement of the Urban Land Ceiling Act. Learned Counsel further urged that in the surrejoinder, referred to in paragraph 7(a), the plaintiff had denied that the defendant is the tenant of the suit premises and slated that defendant is licensee of the suit premises from the year 1975. Learned Counsel further urged that the amendment is being introduced at a very late stage and as a result of the amendment, the plaintiff will again be required to lead evidence.
4. Learned Counsel for the petitioner further urged that an amendment of the written statement which deprives a plaintiff of the valuable right accrued to him from the admissions made in the written statement and which prejudices the plaintiff irretrievably and causes injustice to the plaintiff which cannot be compensated by awarding costs in favour of the plaintiff should not be granted. Similarly, an amendment of the written statement which has the effect of displacing the plaintiffs suit should not be granted. So also, an amendment of the written statement which will amount to completely changing the stand of the defendant should not be granted. An amendment which is not necessary for determining the real controversy between the parties should not be granted. In the submission of the learned Counsel, the amendments sought are not necessary for determining the real controversy between the parties.
5. Dr. Chandrachud, learned Counsel appearing for the respondent, urged before me that the amendments are necessary for determining the real controversy between the parties. He urged that it is the case of the defendant from the very beginning that the defendant is the owner of the suit premises and that entries that have been taken in the books of accounts by the company, which show the defendant as tenant of the suit premises, are not really to be acted upon. In the submission of Dr, Chandrachud, by the amendment the respondent is giving an additional reason for making entries in the books of accounts which do not represent the true state of affairs, namely, the provisions of the Urban Land Ceiling Act. In so far as the pleadings in paragraph 7(a) relating to the statements made in the surrejoinder filed by the plaintiff-company in Company Petition No. 57/1992 are concerned, the learned Counsel submitted that the amendment is necessary to point out that the plaintiff has been taking different stands at different times in relation to the status of the defendant vis-a-vis the suit premises. In the submission of Dr. Chandrachud, the real question in controversy in the civil suit is the relationship between the plaint iff and the defendant in relation to the suit premises and therefore the stand taken by the plaintiff at some point of time in the past in relation to the suit premises is relevant and necessary for deciding the real controversy between the parties. Dr. Chandrachud, by relying on the Judgment of the Supreme Court in the case of Akshaya Restaurant v. P. Anjanappa urged that even an admission given in the written statement can be explained and even inconsistent pleas can be taken in the pleadings. Further relying on the judgment of the Supreme Court in the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary 1995 Supp (3) SCC 179: 1996 SC FBRC 201 he urged that inconsistent and contradictory stands cannot be taken is applicable only to the pleadings in a plaint; however, a defendant can seek amendment of written statement for introducing even a stand contrary to the one taken in the original written statement. In the submission of the learned Counsel for the respondent, whether an amendment is to be allowed or not is in the discretion of the trial court. The trial court has exercised its discretion and allowed the amendment to be introduced in the written statement. Therefore, this Court, in a petition filed under Article 227 of the Constitution of India, cannot interfere with the discretionary order passed by the trial court, especially when, in the submission of Dr. Chandrachud, the petitioner-plaintiff has not been able to point out that the order allowing the amendment would result in injustice or any material prejudice to the interest of the petitioner-plaintiff.
6. It is clear from the provisions of Order VI, Rule 17 of the C.P.C., which read as under :
17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
that an amendnent can be made in the written statement which will be necessary for the purpose of determining the real questions in controversy between the parties. It is an admitted position before me that the real question in controversy between the parties before the trial court is the status of the plaintiff and the defendant in relation to the suit premises. The question to be decided in the civil suit is whether the plaintiff is the owner of the suit premises as is claimed by it or it is the defendant who is the owner of the suit premises. It is to be decided by the trial court in the suit whether the defendant is the tenant of the suit premises or is deemed owner of the suit premises. Perusal of the amendment application shows that by the first part of the amendment application, which relate to the affidavit-in-surrejoinder filed in Company Petition No. 57/1992, relates to the stand taken by the plaintiff with regard lo the status of the defendant vis-a-vis the suit property. Therefore, in any case, the averments made in the surrejoinder would be relevant for deciding the question in controversy in the civil suit. It is further to be seen here that it is clear from the written statement of the defendant that it is the stand taken by the defendant in the written statement that as a result of the Memorandum of Understanding between the three brothers, it was decided that as the defendant is using the suit premises, it will be the owner of the suit premises. However, the entries in the books of accounts showed the defendant as the tenant of the suit premises. However, the entries, according to the defendant, did not depict the real state of affairs and such entries were taken in the account books, according to the statements in the written statement, only for the purpose of accounting. By the averments in paragraph 7(a) of the amendment application what is being done is, an additional reason is being given for making entries in the books which do not depict the true state of affairs. The reason is that the entries were made in the books of accounts which do not depict the real state of affairs in order to save the property from the provisions of the Urban Land Ceiling Act. Therefore, the averments in this regard will also be relevant for deciding the real controversy between the parties.
7. The Supreme Court, in its judgment in the Case of Ganesh Trading Co. v. Moji Ram has considered the provisions relating to the pleadings and their amendment. The Supreme Court in paragraph 4 of its judgment has observed thus:
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 the 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 omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
It is clear from the abovequoted observation of the Supreme Court that the power of the court to allow amendment in written statement is to be exercised by the court for promoting the ends of Justice. The only rider that is provided in this judgment is that such amendment must not result in unjustifiably injuring rights accrued to the plaintiff. In so far as the present case is concerned, except for saying that the plaintiff will have to lead evidence again in order to explain the statements made in the surrejoinder, the learned Counsel for the petitioner was not in a position to point out to me as to which right already accrued to the plaintiff will be injured by allowing the defendant to effect amendments in the written statement. It is pertinent to note here that the defendant in its application for permission to amend the written statement has in categorical terms stated :-
The Defendants do not intend to lead any further oral or documentary evidence with respect to said two paragraphs.
The parties have stated before me that the evidence of the defendant is already closed. It does not want to lead any further oral or documentary evidence. The plaintiff is now leading evidence in reply. Therefore, while leading its evidence in reply, the plaintiff can also lead evidence that may be necessary because of the amendments in the written statement. The trial court has, by its order impugned, also saddled costs on the defendant. No grievance is made before me that the amount of cost awarded by the trial court is not proper.
8. It is further to be seen here that it is clear that the amendment sought by the application for amendment by the defendant is belated. These grounds were available to the defendant from the very beginning and I find no justification for the defendant to have waited till it closed its evidence for making an application for amendment. However, the trial court, in paragraph 19 of its order, has observed that mere delay in filing the amendment application cannot be a ground for rejecting the application. Learned Counsel for the petitioner was not in a position to point out to me any authority holding that an application for amendment of written statement can be rejected merely on the ground of delay. Therefore, though I find that the amendment application was filed by the defendant belatedly, on that ground the amendment application cannot be rejected. It is further to be seen here that the Supreme Court, in its judgment in the case of Panchdeo Narain v. Jyoti has observed:
…And ordinarily, it is well settled that unless there is an error in exercise of jurisdiction by the Trial Court, the High Court would not interfere with the order in exercise of its revisional jurisdiciton.
It is undisputed that the trial court had the power and authority to consider the application for amendment filed by the defendant and to pass appropriate order thereon. I find that the amendments sought in the written statement are relevant for deciding the controversy involved in the suit. Though it is possible to say that the amendment is not absolutely necessary for deciding the controversy between the parties, nevertheless, the fact remains that the trial court has found that the amendments are not only relevant but also necessary for deciding the controversy between the parties. I find that it is possible to take that view on the basis of the material on record and therefore, in my opinion, I would not be justified in interfering with the order passed by the trial court in allowing the application for amendment, in my jurisdiction under Article 227 of the Constitution of India. It is to be seen that the High Court would not disturb an order passed by a subordinate court which is within the jurisdiction of that court unless the High Court finds that it is impossible, on the basis of the material on record, to take the view that has been taken by the subordinate court.
9. In the result, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.
10. At this stage, the learned Counsel for the petitioner requests that the operation of the interim order passed in this petition should be continued, despite dismissal of the petition, for a period of four weeks. Learned Counsel for the respondent does not oppose the request. Therefore, it is directed, despite dismissal of this petition, that the interim order passed in this petition shall continue to operate for a period of four weeks from today. Certified copy expedited.