DEVICHAND RATANCHAND SOLANKI Vs. PREMSHANKAR SHIVRAM BAJPAYI

JUDGEMENT

(1.) BOTH these applications are directed against the impugned order dated 3rd March, 1989 of the Civil Judge, Senior Division, Thane, allowing the applications of the respondent for amendment of the plaint and the written statement.

(2.) THE petitioners are defendants in R. C. S. No. 1294 of 1982 filed by the respondent for permanent and mandatory injunction. Special Civil Suit No. 235 of 1983 was filed by the petitioners for possession and compensation and also injunction. The respondent herein is the defendant in the above suit. The respondent had filed his written statement in the above suit. Later, the respondent herein filed applications for amendment of the plaint and the written statement respectively in the above cases on the ground that the leave and licence agreement was in fact an agreement of tenancy and, as such, he was a tenant of the suit land and not a licensee as stated by him in the plaint in the former case and in the written statement in the latter case. He, therefore, wanted the permission of the Court to amend the plaint and the written statement respectively in the two cases by substituting the words "tenant and tenancy" in place of the words "licensee and licence". His applications for amendment were opposed by the opposite party in both the cases on the ground that the proposed amendment would completely change the nature of the suit and that it was not bona fide. On consideration of the rival submissions of the parties, the trial Court was satisfied that it was a fit case for allowing the proposed amendments in exercise of powers under Order 6, Rule 17 of the Code of Civil Procedure (C. P. C.) and allowed the same. He directed the applicant (the respondent herein) to carry out the amendment in the plaint and the written statement within 10 days. It was made clear that on the failure to do so, the application for amendment would stand rejected. Cost of Rs. 500/- was also allowed to the other side in each of the two cases.

(3.) LEARNED Counsel for the petitioners has challenged the above orders on the ground that the proposed amendment would have the effect of ousting the jurisdiction of the Court. In other words, his submission is that if the amendment is carried out, the trial Court, Civil Judge, Senior Division, will have no power to proceed with the suit. Civil Judge, Junior Division will be the appropriate Court for the purpose. Counsel submits that such amendments cannot be allowed. In support of this submission, reliance is placed on a Division Bench decision of this Court in (Benisham v. Mahadeo) A. I. R. 1985 Bom. 462.