Tajdin Javerbhai Mavany (Since Deceased) Represented Through his Legal Representatives:- Smt. Sakina Tajdin Mavany and Others vs Bharat Petroleum Corporation Limited

S.K. Shah, J.

This is appellants/plaintiffs application seeking amendment of the plaint. The plaintiffs/appellants had filed a suit for eviction of the defendants from the suit property and for consequential reliefs.

By Indenture dated 22.8.1967, executed between the predecessors-in-title of the plaintiffs and Burmah Shell Oil Storage and Distributing Company of India Limited, the predecessors-in-title of the defendants, the suit property was leased to the respondents for a period of 20 years on certain terms and conditions. Subsequently the Government of Goa acquired the entire equity share holding in Burmah-Shell Refineries Ltd. and as such the said Company became Government Company by virtue of Burmah-Shell (Acquisition and Undertakings in India) Act, 1976. The plaintiffs terminated the respondent''s tenancy by Notice dated 10.4.1989 and since the defendants failed to vacate the suit premises, Special Civil Suit No. 55/1990 was filed based upon the Notice of termination dated 10.4.89. There were also other grounds for eviction namely that the respondents had committed several defaults in compliance with the terms and conditions of the Indenture dated 22.8.67

The defence of the respondents was that they had exercised option for renewal of the lease for 20 years on 28.1.86 and accordingly the said lease expired on 31.3.06.

The Applicants state that without prejudice to the case put up by the applicants/appellants and assuming that the case with regard to renewal set up by the respondents to be true, even then the period of the purported renewed lease expired by efflux of time on 21.3.06. They further state that without prejudice to the rights and contentions raised in the suit and First Appeal, the plaintiffs/appellants issued Notice dated 24.4.06 by Registered A.D. to the respondents, calling upon the respondents to hand over possession of the suit premises to the plaintiffs/appellants. However, the respondents despite receipt of the said notice, neither handed over the possession of the suit premises nor responded to the notice. The plaintiffs/appellants therefore allege that in view of the subsequent event, the applicants are desirous of amending the plaint in Special Civil Suit No. 55/1990 to bring about the subsequent event.

The respondents opposed this application by their reply and contend that this amendment application is not maintainable; that the proposed amendment is based upon different alleged cause of action and is in the nature of changing the character of the suit. The allegations made in the proposed amendment are required to be adjudicated by giving proper hearing to the respondents by the trial Court. They also contend that by virtue of the provisions of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 the respondents are a Government Company and entitled to invoke the powers and rights contained in Section 7(2)(3) r/w section 5(2) for renewal of lease. They further contend that the said Act was enacted to ensure coordinated distribution of their product so that there is no hindrance to distribute the product of their Company. They also contend that the lease which was granted to the respondents is a perpetual lease and the respondents are entitled to continue and occupy the demised premises for such further period as may be required, notwithstanding whether a fresh lease is executed and registered or not. They further contend that the termination of their lease by the appellants is bad in law. On these contentions, they claim dismissal of the application for amendment.

I have heard the Counsel on both sides. The learned Counsel for the appellants/plaintiffs contends that it is permitted to bring on record the subsequent events with a view to finally decide the real controversy between the parties. He also further contends that there is no change in cause of action. In his submission subsequent event is the additional ground for claiming possession of the suit premises from the respondents. He then submits that merely because the cause of action arose during the pendency of the suit the proposed amendment is required to be granted as the basic structure of the suit is not changed and also there is no change in the nature of the relief claimed. For these submissions, he relies on the decision of the Apex Court in Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, . He further submits that the dominant purpose of the amendment is to minimise the litigation and for making this submission he relies on the decision of the Apex Court in the case of Ragu Thilak D. John v. S. Rayappan and Others reported in (2001) 2 SCC 472.

As against this, the contention raised on behalf of the respondent is that there is completely a new cause of action which has arisen during the pendency of the suit and therefore the same is required to be considered independently in an independent suit to be filed by the appellants/plaintiffs. The same cannot be allowed to be brought in at the stage of appeal by amendment of the plaint.

The next submission made on behalf of the respondents is that destructive pleas cannot be allowed. He explains that if the amendment is allowed, the cause of action that is available to the appellants/plaintiffs would be the termination of the respondent''s tenancy by the notice recently issued on 24.4.06. This would obviously mean that the plaintiffs would be giving up the earlier cause of action which was available to the appellants/plaintiffs for filing the suit and it would therefore be destructive of the earlier cause of action and in his submission such amendment cannot be allowed. He further submits that even on merits the lease granted in favour of the respondents is protected under the provisions of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976.

The last submission which is made on behalf of the respondents is that in case the amendment is allowed and the appellants/plaintiffs succeed in getting possession on that ground, the respondents would be deprived of the important right of appeal, as the matter would be decided at the stage of appeal. He also submits that evidence would be required to be led if the amendment is allowed.

I have given serious consideration to all these aspects of the matter. It is needless to say that the subsequent event can be brought on record by way of amendment if it does not change the nature of the suit or the basic structure of the suit. In the present case the suit was filed for recovery of possession of the premises on the ground of termination of lease. It is undisputed position that the second renewal of 20 years expired on 31.3.06 during the pendency of these proceedings. As a result of the period of 20 years having expired, the plaintiffs issued Notice requiring the respondents to vacate the suit premises and give peaceful possession to the appellants/plaintiffs. This is clearly a subsequent event having arisen during the pendency of the suit. If this is allowed to be brought on record, the basic structure of the suit which is for possession of the premises, filed by the owner of the property against the lessee, is not at all changed. The question would be whether such an amendment could be allowed at this stage. This has been answered by the Apex Court in the case of Rajesh Kumar Aggarwal (supra) wherein it has been observed by the Apex Court as under :-

In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

In the case of Ragu Thilak D. John (supra) the Apex Court has observed as under :

If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.

Thus it is clear that such an amendment which does not change the nature of the suit or the basic structure of the suit, can be allowed when the cause of action arose during the pendency of the suit, as it is in the instant case and as observed by the Apex Court, it is with a view to minimise the litigation. It is clear that the cause of action which the plaintiffs are seeking to bring by way of amendment is available for filing the suit seeking the same relief, that is of possession of the suit premises. If that is so, the same can be brought in by way of amendment in the same suit which is basically for possession of the suit premises.

As contended by the learned Counsel on behalf of the respondents, in his submission, this would be a new cause of action for eviction. However, this contention is not correct. What can be stated is that it is an additional cause of action, but not a new one. Earlier when the suit was filed, the lease of the respondents was terminated by notice. There was also expiration of the period of lease. Now during the pendency of the suit even the second period of lease of 20 years has expired and that would provide additional ground for claiming possession of the suit premises. Since it does not change the nature of the suit, the same can very well be brought by way of amendment.

The contention that the cause of action which has now arisen will be destructive of the cause of action which was available to the plaintiffs when the suit was filed is also not correct. In the amendment application it has been clearly mentioned that without prejudice to the contention of the applicants/appellants in the suit as well as in the First Appeal, the amendment is sought. The appellants/plaintiffs therefore would be entitled to agitate the ground for eviction which they have taken in the suit and in addition thereto, they are now seeking to agitate the additional ground of termination of the respondents'' lease which has expired on expiry of the period of 20 years.

Then it was contended by the learned Counsel for the respondents that it is a perpetual lease and that he would lose the important right of appeal and that the evidence would be necessary to be led. All these aspects are not required to be considered at this stage when I am considering whether the amendment as sought to the plaint can be allowed or not. There is no bar under the provisions of Order 6, Rule 17 of C.P.C. which allows amendment to be brought on record. It is well settled that the pleadings can be allowed to be amended at any stage of the suit including First Appeal or further proceedings. So long as the amendment does not change the nature of the suit, the same has got to be allowed. If it is necessary that by allowing the amendment, additional evidence would be required to be led, the matter can very well be remanded to the trial Court for leading evidence on the limited aspect of the amendment. This is done, as observed by the Apex Court, with a view to minimise the litigation. Under these circumstances, the application seeking amendment shall have to be allowed. Hence the application is allowed. The appellants/plaintiffs shall carry out the amendment to the plaint within a period of two weeks and serve the amended copy of the plaint on the other side within one week thereafter. The respondents/defendants shall be free to file additional written statement limited to the amendment of the plaint.