Orient Club Building and Association v. Mrs. Nilofer Abijit Gupta

(v) Mr.Sen submitted that the proposed Defendants who are also claiming to be tenant after the death of the original tenant would always be necessary and proper party.

(vi) Mr.Sen submitted that under the provisions of Order I

Rule 10 of the Code of Civil Procedure, a necessary party can be joined to the suit at any stage. So also as per the provisions of Order VI Rule 17 of the Code of Civil Procedure, an amendment to the pleadings can be done at any stage where the real question between the parties has to be decided.

(vii) Mr.Sen submitted that the judgment of the Division

Bench of this Court in the case of Mina Srinivasan Khrishnan and others vs. Arun Bhaskar Adarkar reported in 2014 SCC OnLine Bom 633, which is relied upon by the Petitioner has not been construed in the right manner.

(viii) Mr.Sen relied upon the letter dated 26 August 2006, written by his client “Nilofer” to the landlord. Mr.Sen submitted that the judgment of Mina Srinivasan Krishnan and others vs. Arun Bhaskar Adarkar reported in 2014 SCC OnLine Bom 633, was a case where a dispute was between the siblings, and the landlord was not a party to the said proceedings.

(ix) Mr.Sen submitted that paragraphs 83 and 102 of the

Division Bench judgment, specifically states that Civil Court may also have jurisdiction to decide which means that the Court of Small Causes also have the jurisdiction to decide if two persons come before the Court to declare them as a tenant. Mr.Sen also referred to paragraph No.113 of the Division Bench judgment.

(x) Mr.Sen further submitted that Section 35 of the

(xi) Mr.Sen relied upon the following judgments:-

1). Razia Begum vs. Sahebzadi Anwar Begum & Ors., reported in 1959 SCR 1111, 2). Khaja Abdul Khader vs. Mahabub Saheb, reported in 1978 SCC OnLine AP 158, 3). Amit Kumar Shaw & Anr. vs. Farida Khatoon & Anr., reported in (2005) 11 SCC 403, 4). Barkatali Abdul Razzak Kazi & Ors. vs. Manzoor Abdul Razzak Kazi & Anr., reported in 2014 SCC OnLine Bom. 2887, 5). Kamlesh Gupta vs. Mangat Rai, reported in

6). Asoo K. Nihalani vs. Shekhar Dadarkar, reported in 2018 SCC OnLine Bom. 8642, 7). Shivanand Ashok Hiremath vs. Deepak Ashok Hiremath, reported in 2017 SCC OnLine Bom. 9894, 8). Sai Krishna Trading Co. vs. Hiren Podder, reported in 2016 SCC OnLine Cal.10140, 9). Associated Automotives Sales (P) Ltd. vs. R.K. Mahesh, reported in 2018 SCC OnLine Hyd. 2131, 10). Abdul Rehma vs. Mohd. Ruldu, reported in

12). State of Bihar vs. Modern Tent House, reported in (2017) 8 SCC 567, 13). Dena Bank vs. Aseem Rais, reported in 2016 SCC OnLine Bom.13535, 14). Ragu Thilak D. John vs. Rayappan, reported in (2001) 2 SCC 472, 15). Pankaja vs. Yellappa, reported in (2004)6 SCC 415, 16). Surender Kumar Sharma vs. Makhan Singh, reported in (2009) 10 SCC 626, 17). Rameshkumar Agarwala vs. Rajmala Exports Pvt. Ltd.,reported in (2012) 5 SCC 337. 18). Usha Devi vs. Rijwan Ahamd & Ors., reported in (2008) 3 SCC 717, 19). Het Ram Kanodia vs. Xth Additional District Judge, Kanpur & Ors., reported in 1994 SCC OnLine All 52, 20). A.K. Gupta & Sons Ltd. vs. Damodar Valley Corporation, reported in 1965 SCC OnLine SC 49, 21). Prem Lal vs. Jadav Chand (Actg.CJ) reported in RLW 1977, 265.

11. Mrs. Jai Kanade appearing for the proposed Defendants, who are Respondent Nos.[2] and 3 in the present writ petition made her submissions:-

(i) Mrs.Kanade submitted that her clients who are recognized as tenants by the landlord would always be a necessary and proper party to the proceedings where some one who is not a tenant is trying to claim that he is the tenant, hence for deciding the said issue, it would be necessary to hear her client.

(ii) Mrs.Kanade submitted that therefore her client would always be a necessary and proper party in the declaratory suit. She submitted that however, paragraph 9-A as proposed to be added to the plaint would not be necessary and the same should be not allowed to be added to the plaint.

(iii) Mrs.Kanade submitted that in the impugned order, there is no discussion on merits and there is error apparent on the face of it. Mrs.Kanade submitted that the limitation period for filing a declaratory suit is of three years.

(iv) Mrs.Kanade submitted that apart from the impugned order being passed, on the same day two separate orders have been passed, copies of the same are on record. She submitted that once such order separated the eviction suit and RAD suit and the second order thereafter re-casted the issues. She submitted that though the suits which were clubbed together or separated by an order passed by the Trial Court, this Court thereafter again clubbed the suits together by an order dated 13 October 2016. She submitted that however, the order of recasting the issues was not challenged before this Court. Therefore, the said order has attained finality. She submitted that there is no due diligence on the part of the Plaintiff and the amendment application suffers from delay.

(v) She submitted that though her client did not file a formal application to oppose the amendment application however, she has specific instructions that her client, to oppose the amendment as sought to the plaint by paragraph 9-A.

(vi) She submitted that her clients can be jointed as the parties to the proceedings and she will have no objection if the proposed paragraph 9-A is deleted from the schedule of the amendment sought.

12. Mr.Lohia in rejoinder submitted that no judgment on heirship can be decided by the Small Causes Court.

(i) Mr.Lohia submitted that paragraphs 90 and 102 of the

(ii) Mr.Lohia submitted that by the amendment sought, the subject matter of enquiry changes.

(iii) Mr.Lohia also referred to Section 35 of the

(iv) Mr.Lohia submitted that it is a matter of record that the proposed Defendants themselves have not made any application to be added as a party to the suit.

ANALYSIS AND CONCLUSION:

13. I have heard counsel for all the parties and through their help I have gone through the documents on record.

14. The Petitioner No.1, is admittedly the owner/landlord of the suit premises which is a residential flat admeasuring 3230 sq. ft. Respondent No.1- ‘Nilofer’ has filed RAD suit for declaring her as a tenant of the suit premises in the Court of Small Causes, Mumbai in the year 2008. In the said RAD suit filed, only the landlord / owner is made a party Defendant.

15. In R.A.D. Suit, before the Small Causes Court following reliefs have been sought which are as under:- “a). For a declaration of this Hon’ble Court that Plaintiff is a tenant of the Defendant No.1, Orient Club and other Defendant Nos.[2] to 5 in respect of suit premises viz. Flat on the West Side, 3rd Floor, situated at Orient Club Building, 9, Chowpatty Sea Face, Mumbai – 400 007, bearing C.S. No.402 of Malbar Hills are owner / landlord of the property known as Orient Club, 9, Building, Chowpatty Sea Face, Mumbai – 400 007 at a monthly rent of Rs.1017/-. b). For a direction to this Hon’ble Court to the Defendants that Defendant No.1 transfer tenancy of suit premises in the name of this Plaintiff. c). For a direction of this Hon’ble Court to the Defendants that the Defendant No.1 to accept the rent and issue appropriate receipts of rent in respect of suit premises.” (Emphasis supplied)

16. Hence considering the prayers sought in the declaratory suit, the Plaintiff “Nilofer” is seeking a declaration from Small Causes Court that she i.e. “Nilofer” is a tenant of Defendant No.1 / landlord.

17. The plaint filed in the year 2008 goes on the basis that the Plaintiff is the member of family of the deceased tenant. It is necessary to examine the submissions made in the Plaint. More particularly, paragraph nos.[3] and 9 of the Plaint, the same are reproduced hereinbelow:- “3) The Plaintiff further submits that the said Ahmed G.R. Khairaz, uncle of this Plaintiff has executed a Declaration dated 20th MAY 1978 (written communication referred to herein above) giving up all his right, title and interest in respect of suit premises and has given assent to transfer the tenancy rights in favour of Miss. Zubeda G.R. Khairaz his sister, after the death of Dostmohamed G.R. Khairaz on 26th February, 1978. The Plaintiff craves leave to refer and rely upon the Declaration dated 20th May, 1978 as when produced. It is further submitted that the original tenants, other married son by name Fazal G.R. Khairaz expired on date 6.8.1980 and he was having one son who is also dead. All the other sons and daughters of G.R. Khairaz were unmarried except Shrin Y. Patel nee G.R. Khairaz.

9) The Plaintiff submits that the Defendant No.1 had accepted a cheque of rent for Rs.1017/- as stated in para 6 above, after the death of tenant Zubeda G.R.Khairaz and hence for all purposes in law Mahmoud G.R. Khairaz was accepted as a tenant in respect of the suit premises and hence after the demise of Mr.Mahmoud G.R. Khairaz on or about 7th July, 2006 the Plaintiff succeeded to the right of tenancy which had accrued in favour of Mr. Mahmoud G.R. Khairaz as a tenant, as she was residing alongwith the deceased tenant Mr. Mahmoud G.R.Khairaz as his family member and continues, to reside in the suit premises. The Plaintiff, on 22.06.2006, during the life time of Mr.Mahmoud G.R.Khairaz, tendered the rent for the month of June 2006 by a cheque for Rs. 1017/- which was signed by the Plaintiff to the Defendant. This cheque was received but not encashed. Hereto annexed and marked at EXHIBIT "C" is the copy of the cheque. In the alternative the Plaintiff was also residing as a family member of the Zubeda G.R.Khairaz in the suit premises at the time of her death and hence has succeeded to the tenancy of the suit premises. The Plaintiff has made repeated bonafide attempts to take payment of the rents that may become due and she has addressed a letter to the Defendant No.1 dated 21st July, 2006 requesting the Defendants to accept the rent for the month of July, 2006 by enclosing cheque No. 223292 drawn on UCO Bank, Bharatiya Vidya Bhavan Branch for Rs.1017/- and to issue rent receipt for the said payment and to transfer the tenancy right in favour of the Plaintiff. Hereto annexed and marked EXHIBIT "D" AND EXHIBIT "E" are the copy of letter addressed to Defendant No.1 and copy of cheque bearing No. 223292. Having received the letter dated 21st July, 2006 and cheque, instead of recognising and transferring tenancy right in favour of the Plaintiff, the Defendant No. 1 issued a reply to Plaintiff containing false and untenable allegations which the Plaintiff denies and which are contrary to the facts and of the case. Further the Defendants refused to accept rent and transfer the tenancy rights in favour of the Plaintiff. Hereto annexed and marked EXHIBIT "F" is the copy of reply dated 2nd August, 2006.”

18. Thus, the case of ‘Nilofer’ as plaintiff in RAD Suit filed in the year 2008 is that her uncle ‘Ahmed Khairaz’ was accepted as a tenant, by the landlord, and the said ‘Ahmed Khairaz’ had executed a declaration dated 20 May 1978, giving away his right, title and interest in respect of the suit premises in favour of one ‘Zubeda Khairaz’ (his sister and aunt of ‘Nilofer’) and futher after the death of ‘Zubeda Khairaz’, her brother ‘Mehmoud Khairaz’ was accepted as tenant and after the demise of ‘Mehmoud Khairaz on 7 July 2006, ‘Nilofer’ succeeded the right of tenancy as she was residing in the suit premises on that day. And, in the alternative, ‘Nilofer’ was residing as family member with ‘Zubeda Khairaz’ in the suit premises at the time of the death of ‘Zubeda Khaira’, and hence, she succeeded to the tenancy of the suit premises.

19. With this kind of pleadings, in the suit filed in the year 2008, much later, in the year 2018, the Plaintiff “Nilofer” filed an application for amendment of the plaint of RAD suit. The said amendment sought two kinds of reliefs i.e.: (a) Join the Respondent nos.[1] and 2 as Defendant Nos.[8] and 9 in the title of the Plaint; (b) to add paragraph No.9A to the plaint. The said proposed paragraphs reads as under:- “9-A. The Plaintiff states and submits that in the alternative and in the event that this Hon’ble Court arrives at the conclusion that the claim in suit is not covered by the provisions of Section 7(15)(d)(i) of the Maharashtra Rent Control Act, the Plaintiff states and submits that she is one of the heirs and legal representatives of the original tenant viz. Zubeida Gulamhusein Khairaz. The heirs have not reached any agreement between themselves. The Defendant No.8 and 9 are not accepting and are contesting the claim of the Plaintiff. The Plaintiff therefore states and submits that she has been looking after the family members and predecessors residing in the suit premises and she has been residing therein and maintaining the suit premises and paying the outgoings and dues in respect of the same and she is the fit and proper person to succeed to the tenancy rights in respect of the suit premises and to be declared the tenant thereof and that Defendant No.8 and 9 have no right or interest therein. The trustees have filed RAE Suit No.1664 of 2007 against the Defendant Nos.[8] & 9 and the Plaintiff herein and the same is pending. Rights have not yet been decided. However since this suit is being heard and decided at the same time or prior to the said eviction suit it is necessary that the claim, if any, of Defendants No.8 & 9 (and which is denied by the Plaintiff herein) be decided herein against the claim of the Plaintiff and so that there is complete and final disposal of the dispute in suit.” Proposed paragraph No.9A of the Plaint.

20. To consider the proposed amendment of the Plaintiff it will be necessary to look into the definition of tenant. Section 7(15)(d) of the Maharashtra Rent Control Act, 1999, defines tenant as under:- “Section 7(15) - “tenant” means any person by whom or on whose account rent is payable for any premises and includes, - (a) such person, …….....

(d) in relation to any premises, when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant’s family, who, --------

(i) where they are let for residence, is residing, or

(ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided, in the absence of agreement, by the court.”

21. ‘Nilofer’ in the year 2018, by amendment, wants to take a totally new stand. In the year 2008, the claim of tenancy is as per the provision of Section 7(15)(d)(i) of the Maharashtra Rent Control Act. By amendment sought in the year 2018, she also wants to claim that in the event, the Court comes to a conclusion that the claim in the suit is not covered under Section 7(15)(d)(i), ‘Nilofer’ being the heir and legal representative of ‘Zubeda Khairaz’, and the heirs having not reached to any agreement between themselves, the Court should declare ‘Nilofer’ as a tenant. The legal heirs of Ahmed Khairaz, have opposed the proposed amendment of insertion of Paragraph No.9A. So also Landlord/present Petitioners opposed the proposed amendment.

22. After the RAD Suit for declaration of tenancy was filed by “Nilofer” in the year 2008 and subsequently, issues were framed, the Plaintiff therein i.e. “Nilofer” filed her affidavit-inlieu of examination-in-chief in the year 2011. It seems that thereafter for one or other reason, the matter did not proceed further and the cross-examination of the Plaintiff did not commence.

23. The amendment is sought after a period of ten years and the said amendment raises a new plea which is in the alternative that the Plaintiff be declared as a tenant, in absence of heirs having not arrived at a settlement. Ahmed Khairaz died on 2 February 2012. During his life time, he was not joined as a party Defendant in RAD suit. Much later in the year 2018, Ahmed Khairaz’s legal heirs are sought to be added as party Defendants, with a new case, and the only reason given for delay of 10 years is ‘oversight’. The trial has began in the year 2011, hence the proposed amendment sought is a post trial amendment.

24. In my view, such a plea after a period of ten years cannot be allowed. The reason of delay given as ‘due to oversight’, is not acceptable as sufficient to allow the amendment. I am of the view that there is no due diligence on part of Plaintiff.

25. The Supreme Court in the case of South Konkan Distilleries (supra), held that amendment application after 13 ½ year is barred by law of limitation hence amendment application rejected, Paragraph Nos. 26, 27 and 28, reads as under:

26. Admittedly, the claim of 1986 was sought to be made by way of the amendment of the written statement and the counterclaim in the year 2000, when that claim had already become barred by the law of limitation. Such being the position and in view of the principle laid down, as noted hereinabove, that if a suit was filed for the amended claim which could have become barred by the law of limitation, the application for amendment was rightly rejected.

27. Keeping the aforesaid findings made by us and also the findings arrived at by the courts below in the matter of exercise of discretion to reject the application for amendment of the written statement and the counterclaim in mind, the delay and laches on the part of the appellants to apply for amendment of the written statement and the counterclaim would be the relevant factor for rejecting the application for amendment of the pleadings. As noted hereinearlier, there has been thirteen-and-a- half years delay in filing the application for amendment of the pleadings. Furthermore, in the application for amendment, the appellants had not given any explanation whatsoever for such delay. Under these circumstances, we do not find any reason to interfere with the orders of the courts below. In our view, in the facts and circumstances of the case, the courts below were perfectly justified in rejecting the prayer for amendment of the written statement and the counterclaim.

28. In view of our findings made hereinabove, that on the date of filling of the amendment petition, the claim as made by the appellants in their amendment petition was already barred, no purpose would be achieved by allowing the amendment which has already stood barred by the law of limitation. [Emphasis Supplied]

26. In the judgment of M Revanna (supra) Supreme Court held that post trial amendment, were not allowed. Paragraph No.7 and 9, reads as under:

7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment d after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.

9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff 6 Respondent 1 herein.

27. The ratio laid down in both these judgments are squarely applicable to the present proceedings.

28. Therefore, the amendment as sought by the Plaintiff of adding paragraph no. 9-A, to the plaint, requires to be rejected. Adding legal heirs of ‘Ahmed Khairaz’ as party Defendants.

29. As regards adding the Legal Heirs of deceased Ahmed to the plaint as party Defendants, who died on 25 February

2012. Before “Nilofer” could file her declaratory suit, the landlord had filed eviction suit under the Rent Act in the year 2007, against “Ahmed”, and also “Nilofer” was joined as a party Defendant in the eviction suit on the ground that the suit premises had been illegally occupied by “Nilofer”.

30. It is a matter of record that both the suits i.e. suit for declaration of tenancy filed by “Nilofer” and the suit for eviction filed by the landlord against “Ahmed” (now the legal heirs of “Ahmed”) and against “Nilofer”, are clubbed together. Therefore, in any case the legal heirs of “Ahmed” would be heard in the eviction proceedings.

31. It is also a matter of record that the application for amendment was preferred in the year 2018. This Court by its order dated 5 May 2016, in Writ Petition No.10436 of 2015 filed by “Nilofer”, had expedited the hearing of the suits and had directed the Trial Court to dispose of the suit within a period of one year from the commencement of the oral evidence. Inspite of such order being passed by this Court, till date after filing of the affidavit of evidence by the Plaintiff “Nilofer” on 4 October 2011, the matter has not proceeded further as regards the crossexamination of “Nilofer”.

32. In the eviction suit filed by landlord, after the death of ‘Ahmed Khairaz’ on 25 February 2012, an application was soon preferred to bring on record his legal heirs. The said application was opposed by ‘Nilofer’ before the Trial Court. As the said application was allowed, ‘Nilofer’ preferred revision and further Writ Petition, against the said allowing of bringing on record legal heirs of Ahmed Khairaz. And after a span of 10 years ‘Nilofer’ has derived to bring on record legal heirs of Ahmed Khairaz, in her suit, Ahmed Khairaz was not a party to the suit.

33. As far as the reasons stated in the amendment application for delay caused in filing the amendment application, the said reasons are stated in paragraphs 4 and 5. Paragraphs 4 and 5 of the amendment application reads as under:- “4. The Plaintiff states and submit that Defendant No.1 and others have filed RAE Suit No.1664 of 2007 in this Hon’ble Court and the suit is pending. The rights of the claimant therein have not been decided and therefore this application is not barred. However this application is made in the interest of justice and for a final and complete decision as set out herein.

5. It is submitted that the right of the Defendants and Respondents of defence on merits are in fact and they shall not suffer at all if this application is granted. The Respondents Nos.[1] and 2 are necessary and/or proper parties to the suit. But if reliefs are refused, then the Plaintiff’s rights to obtain complete and final resolution is affected and the Plaintiff shall suffer grave and irreparable loss, harm, injury, damage and prejudice which cannot be compensated in terms of money. The interests of justice and the balance of convenience are entirely in favour of the Plaintiff. It is submitted that the proposed incorporation of facts was not carried out earlier due to oversight and now having chosen insight and proper appreciation into the legal position and there is no intention or deliberateness to cause delay, if any, which ought to be condoned. There is no undue lack of diligence in making this application. Proposed amendment is essential for the proposal and decision of the dispute in suit.”

34. It is a matter of record that even though the affidavit of examination in chief was filed in the year 2011, till 2018 the cross-examination had not commenced. The only reason given by the Plaintiff for delay in filing the amendment application is “oversight”. The claim of the Plaintiff is for a declaring her as a tenant. Such a claim / prayer admittedly was sought only against a landlord. In the plaint, the claim of the Plaintiff to be called as a tenant is that of “member of family of deceased tenant”. By amendment what is sought now to be inserted is a new case. The declaratory suit was filed in the year 2008 and amendment came after ten years i.e. in the year 2018. According to me except “oversight”, there is no explanation for the delay of ten years.

35. I am afraid that on such a ground of delay being caused in preferring the amendment application after period of ten years, is not a sufficient reason on which a delayed application should be entertained and hence such application should have been dismissed. 35.[1] Supreme Court in the case of Basavaraj v/s. Indira and others reported in (2024) 3 SCC 705, held that ‘oversight’ cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial. Paragraph no.8 reads as under:- “8. Proviso to Order VI Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the case in hand, this is not even the pleaded case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs. The facts in Basavaraj (supra) are identical to the present proceedings. Therefore, the ratio laid down applies to the present case in hand.

36. According to me, there is no question of adding of legal heirs of deceased “Ahmed” as a party Defendant in the suit of declaration of tenancy, when during life time of ‘Ahmed’, he was not added as a party Defendant. Ahmed died on 25 February

2012. The amendment application to join L.R’s of deceased Ahmed Khairaz is preferred only in the year 2018.

37. Mr. Sen, referred to several judgments on the point of joining parties to the suit as per the provision of Order I, Rule 10 and Order VI, Rule 17 of C.P.C. Few of these judgments are discussed hereinbelow: 37.[1] In Razia Begum (supra), SLP was filed challenging concurrent findings of judgments and orders of the Court below, allowing the intervention in the suit initiated by Appellant against her husband/Defendant. Appellant alleged that there was a pre-nuptial agreement whereby the husband was supposed to pay allowance per month. As the allowance was not paid, the suit was filed in 10 days husband admitted the claim. On the very day an application under Order I, rule 10 of CPC was made by Sahebzadi claiming to be lawful and legally wedded wife of Defendant. There was allegation of collusion. The application of intervention was allowed, and the SLP was dismissed. The facts in this judgment was quite different then the present proceedings, hence the ratio is not applicable. 37.[2] In Khaja Abdul Khader (supra), suit was filed in the year 1975 for ejectment and possession of the land. In the same year on application was preferred by respondent to implead him as party Defendant on the ground that he is heir of one Chandubai who was granted the suit property by the Samsthan Gadwal for the purpose to arrange peers in Gadwal and that plaintiff are not owners of property. In such circumstances, the application was allowed, hence the facts in K. A. Khader (supra) were quite different then the present proceedings, hence ratio is not applicable. 37.[3] In Amit Kumar Shaw (supra), the appellants had claimed right in the property pursuant to the deed of assignment, hence the application for substitution of appellant was allowed by Supreme Court. 37.[4] Single Judge of this Court in Barkatali (supra) held that a claim of petitioners to be joined as a party on the basis of Will, in his favour, by way of review of the order permitting the respondent no.1, to withdraw the amount of compensation, is maintainable. 37.[5] In Kamlesh Gupta (supra), the Supreme Court allowed the tenant who was actually in possession of suit premises to be joined as party defendant even though trial had began, as Court was of a view that, he was necessary party in the suit for redemption of mortgage. As the facts were quite different in these judgment the ratio will not be applicable to present proceeding. 37.[6] Bombay High Court in the case of Asoo K. Nihalani (supra) allowed the impleadment of developer as party defendant in a suit for specific performance of the agreement to sell premises, even though trial had commenced, as developer had step in shoes of original defendant no.1, as they had entered into re-development agreement. Taking into consideration the facts of this case and the present proceedings been quite different, the ratio will not be applicable to the present proceedings. 37.[7] The facts of the other judgments referred by Mr. Sen, are wholly distinguishable than the facts of present proceedings, hence according to me, the ratio of those judgments referred by Mr. Sen will not be applicable to the present proceedings.

38. It is a matter of record that both the proceedings are clubbed together i.e. the declaratory suit and the eviction suit. It is also a matter of fact that the proposed Defendants have not themselves filed any separate declaratory suit. Neither have they made any application in the present declaratory suit, to be joined as a party Defendants. The landlords have themselves admitted / agreed that the proposed Defendants are the tenants of the suit premises. Hence, in my view the proposed Defendants have chosen not to file any declaratory suit of tenancy as between them and the landlord, there is no dispute that they are the tenants. In such a case, in my view, no occasion arise where the proposed Defendants should be joined as a party to the present proceedings of declaratory suit. Though under Order I Rule 10 of the Code of Civil Procedure, at any stage of the proceedings a new party can be added in the suit. However, in my view in the present proceedings no case is made out to add the proposed Defendants as a party Defendant.

39. In my view the findings recorded by the Trial Court that the present proceedings is covered under the provisions of Order I Rule 10 of the Code of Civil Procedure, is absolutely perverse.

40. As regards Whether inter-se right between the legal heirs of original tenant can be decided by Rent Court ? Section 35 of the Maharashtra Rent Control Act, needs to be looked into. The same reads as under: “Section 35. Saving of Suit involving title.-Nothing contained in sections 33 and 34 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish, his title to such premises. Therefore, Section 35, permits a party to approach competent Court to establish its title to premises where the question of title to premises arises.

41. In Mina Srinivasan (Supra), Division Bench of this Court, was dealing with Appeal under Clause 15 of the Letters Patent which challenged the Order passed by Single Judge of this Court, on Notice of Motion, in a civil suit filed, before High Court, by legal heir of deceased tenant against another legal heir, for injunction as regards the tenancy flat. Paragraph No.90 and 102 reads as under:-

90. Having outlined the object and purpose of the Rent Control Legislation and holding that it is only when there is preexisting relationship of a landlord and tenant that the Courts of exclusive or special jurisdiction would be in a position to entertain and try the suits or disputes that we are of the opinion that all the more in the present case the dispute between two heirs as to who should succeed to the tenancy rights in respect of the suit flat is out of the purview of the Courts specified in Section 33 of the MRC Act. To clothe these courts with jurisdiction to entertain and try the suits where the dispute raised is of the present nature or a claim or question to be tried is not involving any preexisting relationship, would be enlarging and expanding the jurisdiction as also ambit and scope of the provision or section conferring it. That would be contrary to the settled canon of Interpretation. A reading of the MRC Act as a whole leaves us in no manner of doubt that the disputes of the present nature do not fall within the province of the courts specified in Section 33 of the MRC Act. We are, therefore, not inclined to accept the argument of Mr. Madon that the term "court" appearing in Section 7(15)(d) of the MRC Act means a court specified in Section 33 and and not an ordinary civil court. For the reasons that we have indicated herein above the provisions of Section 33 do not admit of such construction. Further, the argument of Mr. Madon that there [Emphasis Supplied]would be parallel adjudication does not impress us. In the facts and circumstances of this case we do not find that there is any parallel adjudication. It may be that the Appellants have approached the Court of Small Causes. However, their suit is for declaration that they are tenants in respect of the suit flat. That is the declaration claimed against the landlord. Therefore, the Respondent/Plaintiff being a party thereto does not mean that it is the Court of Small Causes alone which can decide the claim or question raised in the instant suit. With the aid of the plaint in the Suit filed in the Court of Small Causes by the Appellants and their assertions in the affidavit in reply filed in the Notice of Motion in the instant Suit, the Appellants will not succeed in proving that this Court lacks jurisdiction to entertain and try the present Suit. That is the stand of the Appellants and based on their version. That is at best their defence to the present Suit. However, their version cannot be taken into consideration to determine this Court's competence to try the Respondent's Suit. Thus, both suits cannot be as identical or common at this stage and the issue of this Court's jurisdiction is required to be answered independently and with reference to the averments in the plaint in the Suit laid in this Court. When a larger picture as pointed out above is borne in mind and taken into consideration, then, the argument of Mr. Madon must fail.

102. We are unable to agree with Mr. Madon inasmuch as the plaint allegations would show that what the Respondent/Plaintiff has been alleging is that the property in this case is tenancy right. He succeeds to the tenancy right because firstly he was residing with the original tenant at the time of his/her death and dealing with the landlord on their behalf, as also, after their demise. Secondly, he relies upon the wishes of parent in conferring upon the Respondent/Plaintiff the exclusive right to succeed to the tenancy rights in respect of the suit flat. Thirdly, he is referring to the12 pt fact of the Appellants having not been always residing in the suit flat and rather alleging that after the Appellant No. 1's marriage she never resided in the suit flat. She has always been residing at her matrimonial home. Thus, she has nothing to do with the tenancy. Such aspect and essentially of succession to the property of the deceased tenant cannot be agitated in the Court of Small Causes. That would mean that the said Court is burdened with suits or proceedings between the landlord and tenant not only relating to recovery of rent or possession of the premises and to decide any application made under the MRC Act and further to deal with any claim or question therein, but additionally matters unconnected therewith. One can understand that if they were ancillary and incidental to the proceedings contemplated by sub-section (1) of Section 33 and particularly clause (c). However, independent thereof and merely because one of the properties of the deceased happen to be tenancy. rights, the claim or question pertaining to testamentary or intestate succession cannot be brought in and by indirect or oblique method. In fact it is not necessary to multiply this judgment with decided cases by this Court or by the Honourable Gujarat High Court. In the event there is no member of the family residing with the tenant at the time of his death in the case of residential premises nor is there any heir as agreed upon or otherwise and who can step into the shoes of the original tenant, then the landlord is not helpless. He can recover possession of the premises and by proceeding in accordance with law. He can also by way of an appropriate application get the matter decided by the court under Section 33 of the MRC Act. All such suits or proceedings and initiated by the landlord clearly fall within the purview of Section 33 of the MRC Act. However, a dispute as to who is a heir of the original/deceased tenant, if there are more than one heir and there is no agreement between them as to who should succeed to the tenancy rights, is a claim or question relatable to succession and therefore, within the competence of an ordinary civil court. It is in these circumstances that we have held that it is not possible to enlarge the ambit and scope of Section. 33 of the MRC Act, 1999.

42. In my view the Division Bench of this Court in clear term have held that inter-se right between the legal heirs of the deceased tenant can be decided by the Civil Court, and the Small Causes Court cannot decide the same in declaratory suit of tenancy. Section 35 of MRC Act clearly mentions the same.

43. Hence according to me, the Trial Court was erred in allowing the amendment application of the Plaintiff. In the light of above analysis the impugned order dated 1 August 2019 is hereby quashed and set aside. The Petition therefore, succeeds. Rule is made absolute. The amendment if carried out in the plaint stands deleted.

44. The hearing of the eviction suit and RAD suit is hereby expedited. (RAJESH S. PATIL, J.) Designation: PS To Honourable Judge