1. Rule. Rule made returnable forthwith. With consent of parties, matter is heard finally at admission stage.

2. The petitioners impugns order dated 30.06.2025 passed by Ad-hoc District Judge, Merces, Goa below Exhibit D-25 in Rent Appeal No.15/2023, granting application for amendment of written statement filed by respondent no.1 in Rent Case No.49/2013 (New).

3. The petitioners are owners of landed property bearing Chalta Nos.24, 24A, 24B and 24C of P.T. Sheet No.109 of City Survey of Panaji, which consists of residential house. The petitioners leased larger portion of suit premises to one Pandurang Mahatme on payment of monthly rent of Rs.350/-. He sub-let suit premises admeasuring 18 sq. meters situated at rear portion of suit premises without consent of petitioners. Accordingly, in year 1998 petitioner filed Eviction Proceeding No.49/2013 (Old Eviction Proceeding No.2/1998) against Pandurang and after his death his widow i.e. respondent no.2 was brought on record. The sub tenant Ramesh Moraskar was also added as second party in suit. He filed written statement contending that he was residing in room with consent, knowledge and authority of petitioners as statutory tenant and he was asked to deposit monthly rent with respect to his rented premises with Pandurang Mahatme, same was paid in cash.

4. The Trial Court framed issues based on pleading of parties. The Issue No.2 was framed as under:

                   “Whether applicants prove that the rear portion of suit premises admeasuring about 18 sq. meter has been sublet by respondent no.1 to respondent no.2 without knowledge and consent of applicant?, which was answered in affirmative.”

Eventually, decree of eviction was passed against respondents vide judgment and order dated 25.11.2021 in Rent Case No.49/2013.

5. Aggrieved by aforesaid judgment and decree, respondent no.1 filed Rent Appeal No.15/2023/FTC-1. During pendency of Appeal, respondent no.1 filed application Exhibit D-25 seeking amendment in written statement. The petitioners opposed said application, however, learned District Judge allowed said application vide impugned order dated 30.06.2025, passed below Exhibit D-25. Hence, this Writ Petition.

6. Mr. J. E. Coelho Pereira, learned Senior Advocate appearing for petitioners after taking this Court through written statement filed by respondent no.1 in Eviction Suit and proposed amendment in written statement sought at appellate stage submits that District Judge misapplied principles of law governing amendment in written statement and ignored that proposed amendment had effect of changing defence of statutory tenancy to one of Mundkarship at appellate stage, which is impermissible. The proposed amendment is inconsistent with original defence raised in written statement and it has been proposed with dishonest intention to protract the Eviction Proceeding. Permitting amendment in complete variance to original stand in written statement would cause serious prejudice to petitioners who are litigating since long. The attempt of bringing amendment seeking declaration of Mundkarship was aimed at having second inning after plea of statutory tenancy had been specifically turned down by Trial Court. By inviting attention of this Court to definition of ‘Mundkar’ in the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, he submits that person paying rent to Bhatkar for occupation of house is specifically excluded from term Mundkar. However, respondent who originally took plea of statutory tenant on payment of rent, is seeking to amend written statement at appellate stage to bring plea of Mundkarship, which cannot be permitted in law. In support of his contentions he relies upon observations of Supreme Court in cases of S. Malla Reddy Vs. Future Builders Co-operative Housing Society and Others((2013) 9 SCC 349.), and observations of this Court in case of Mitra of Archdiocese of Goa and Daman Vs. K. Vijayadharan(2000 (1) Mh.L.J. 615.), 2000 (1) Mh.L.J. 615.

7. Per contra, Mr. Arjun Naik, learned Advocate appearing for respondent no.1 supports impugned order relying upon observations of Supreme Court in cases of Baldev Singh and Ors. Vs. Manohar Singh and Anr.(2006 (5) SCC 498.), Pandit Ishwardas Vs. State of Madhya Pradesh(1979 4 SCC 163.), Raj Kumar Bhatia Vs. Subhash Chander Bhatia((2018) 2 SCC 87.), Usha Babaseheb Swami Vs. Kiran Appaso Swami and Ors.(2007 5 SCC 602.) and observations of this Court in case of Shantaram Babani Xete Curtorkar Vs. Vishnu Babani Xete Curtorkar(1989 DGLS (Bom) 40.).

8. Having considered submissions advanced by learned Advocates appearing for respective parties, it can be observed that petitioner instituted Rent Case No.49/2013 (New). In defence, respondent no.1 took plea that he was inducted as tenant by consent and knowledge of petitioners and directed to pay monthly rent of Rs.350/- with other tenant i.e. Pandurang. The aforesaid plea was duly tested through evidence recorded by parties. Ultimately, Trial Court decreed suit for eviction against respondents. After suffering decree, respondent no.1 filed Appeal No.15/2023 before District Judge, in which filed application for amendment in written statement dated 25.02.2025 to introduce plea of Mundkarship as against original plea of tenancy.

9. Sub-clause (p) of Section 2 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 defines term “Mundkar” which reads thus:

                   “(p) "mundkar" means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include-

                   (i) a person paying rent to the bhatkar for the occupation of the house;

                   (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;

                   (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and

                   (iv) a person residing in the whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.”

10. Plain reading of definition of ‘Mundkar’ would show that person paying rent to Bhatkar (owner) for occupation of house is specifically excluded. Eventually, person who is occupying dwelling house on payment of rent would not be in position to lay claim of Mundkarship. In present case, respondent no.1 took specific plea in written statement that he was in occupation of premises as tenant and used to deposit monthly rent of Rs.50/- with Pandurang as per instructions given by petitioner. However, finding unsuccessful to defend eviction decree on the basis of aforesaid plea, respondent wants to introduce new plea of Mundkarship at appellate stage by amending written statement. Pertinently, there is nothing on record to demonstrate as to why respondent no.1 could not raise plea of Mundkarship, if any, available before Trial Court.

11. In case of S. Malla Reddy (supra) Supreme Court approved High Court’s order on issue as to whether defendants can withdraw admissions made in written statement and finally came to conclusion that appellant/defendants cannot be allowed to resile from admission made in written statement by taking recourse to Order VI Rule 17 of Code of Civil Procedure, particularly when hearing of suit is already commenced. Similarly, this Court, in case of Mitra Archdiocese of Goa and Daman (supra) application seeking to introduce new plea of Mundkar at belated stage that to inconsistent to the original plea raised in written statement cannot be allowed.

12. There cannot be dispute as to the proposition of law espoused in cases of Baldev Singh and Ors. (supra), Shantaram Babani Xete Curtorkar (Supra), Pandit Ishwardas (supra) and Usha Babaseheb Swami (supra), wherein it has been observed that defendant is entitled to take new defence and also plead inconsistent stand by making application for amendment of written statement. However, in facts of present case, this Court finds that Appellate Court has not only considered amendment at belated stage, but ignored fact that proposed amendment is mutually destructive plea as against originally raised plea in written statement. Eventually, it seeks to withdraw categorical admission regarding tenancy in suit property by introducing plea of Mundkarship. The respondent no.1 has categorically stated that he was inducted as tenant in suit house, so also he was paying rent as agreed. However, by way of amendment at appellate stage, he wants to introduce plea of Mundkarship, which is mutually destructive and contrary to original plea.

13. Perusal of impugned order suggests that Appellate Court while partly allowing application for amendment permitted amendment to raise plea of Mundkarship in addition to plea of statutory tenant. This Court finds that course adopted by Appellate Court is erroneous. The Appellate Court lost sight of fact that plea of tenancy and Mundkarship are mutually destructive to each other. The person who is tenant can never be Mundkar. The plea as to tenancy and Mundkarship cannot go together. In such cases, the amendment permitting mutually destructive plea in written statement cannot be allowed, particularly when petitioners’ plea of tenancy was tested and declared as failed, respondent cannot be permitted to restart his second inning by introducing absolutely inconsistent plea by withdrawing his own admissions as to payment of rent. This Court finds that petitioners would suffer great prejudice if such amendment is permitted at appellate stage in suit, which is originally instituted in year 2011.

14. In result, Writ Petition succeeds and allowed in terms of prayer Clause (a).

15. Rule is made absolute in above terms.