Friday, 28 July 2017

Whether court should allow amendment of plaint to bring on record subsequent event?

Thus, for the foregoing reasons, a ground on which the suit for eviction was not initially instituted, but if that ground being a ground for eviction under the Act and being available to the landlord during the suit, can be allowed to be taken by the landlord during the pendency of the suit and the landlord can legally ask the Court to allow amendment of the plaint taking into account the subsequent event after the institution of the suit and can legally press into service for the relief of eviction of the tenant on that ground (which is one of the grounds for eviction under the Act). As already stated above, such amendments on such grounds (of course being available under the Act) being based on subsequent event should be allowed in a suit for eviction against the tenant just to shorten the litigation, to preserve the rights of both the parties and to subserve the ends of justice. Reference may be made to the case of Sachchidanand v. Heeranand, MANU/BH/0066/1983 : AIR 1983 Pat 276:1983 BBCJ (HC) 168).
IN THE HIGH COURT OF PATNA

Civil Revn. No. 1128 of 1983

Decided On: 09.11.1983

Annapurna Agrawal and Ors.
Vs.
Jitendra Kumar Sinha and Anr.

Hon'ble Judges/Coram:
Ashwini Kumar Sinha , J.
Citation: AIR 1984 Patna 215


1. This is an application on behalf of the plaintiffs and is directed against the order dated 23rd July, 1983, refusing amendment of the plaint.

2. The question is whether amendment of the plaint sought for by the plaintiffs, on the facts and in the circumstances mentioned hereunder, should have been allowed by the Court below.

3. The plaintiffs-petitioners have filed a title suit (T. S. No. 31 of 1982) in the Court of the Hirst Munsif, Gaya, for eviction of the opposite parties under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1982 (hereinafter referred to as 'the Ordinance"). By virtue of Section 1, Sub-section (3) of the Ordinance, Section 28 came into force immediately and the remaining provisions of the Ordinance were deemed to have come into force on 1st April. 1981 and to continue to remain in force thereafter. The plaintiffs prayed for the following reliefs :--

(a) A decree for eviction of the defendants from the suit premises described in Schedule A be passed in favour of the plaintiffs.

(b) A decree for Rs. 2000/- (two thousand) bs passed against the defendant No. 1 in favour of the plaintiffs towards arrears of rent.

(c) A decree for cost of notice amounting to Rs. 54.60 paise be passed against the defendant No. 1.

(d) Cost of the suit.

(e) Any other relief or reliefs to which the plaintiffs be deemed entitled to. Shorn of other details, the grounds for eviction of opposite parties were :--

(i) Sub-letting by defendant No. 1 (the tenant) of the premises to defendant No. 2. It is pertinent to give the relevant extract of this ground, as mentioned in para 2 (h)--"..... that the proprietor of 'Krishi Kendra' is the defendant No. 2, to whom the premises in suit was sublet by the defendant No. 1 for illegal gain and profit, hence to avoid future complications defendant No. 2 has been made party in the suit."

(ii) Defendant No. 1 (the tenant) had not paid a single paisa towards rent and the relevant extract in relation to this ground from paragraph 2 (i) is as follows:-- "That since the defendant No. 1 had neither paid a single paise towards rent .....".

4. According to the plaintiffs-petitioners, they sent registered notices through their lawyer which, according to them, were duly served. The petitioners' case is that even after service of the notice, defendant No. 1 (the tenant) did not pay any heed and just ignored the notice which necessitated the institution of the suit. In paragraph 2 (k), in short, the petitioners' case is as follows:--

"That since the defendant No. 1 has not paid anything for use and occupation of the premises in suit nor has complied with the said notice and has also sublet the premises in suit without written consent by plaintiffs, he has rendered himself liable for eviction along with defendant No. 2."
5. Thereafter the defendants appeared and filed their, written statement. In short, the defence is that it was defendant No. 2 who was inducted in the suit premises on a monthly rental of Rs. 100/- only on 1-5-1982 and thereafter she started her business "Krishi Kendra" therein on 5-5-1982 and was paying the rental thereof since then up-to-date regularly and punctually.

(The year '82' mentioned seems to be a mistype for '81' as the suit itself was filed on 2-3-1982). The further defence was that defendant No. I was the brother of the husband of defendant No. 2 (i. e. Devar of defendant No. 2) and had no interest in the said Business nor had participated in the negotiation for taking the house on tent. The further defence was that the plaintiffs were not in the habit of granting receipts for the payment of rents. The defence also was that as the Bihar Buildings (Lease, Rent and Eviction) Control Act, had lost its force, defendant No. 2 could not move the Controller. The tenancy for a fixed period in favour of defendant No, 1 was also denied.

6. Thus, the main defence was that defendant No. 2 was not a sub-lessee of defendant No. 1 and defendant No. 1 was not the tenant in the premises in question. The other main defence was that the rent was regularly paid and there was no default. The defence of defendant No. 2, who seems to be the main contesting defendant in the suit, was also that the notice to defendant No. 1 could not, in law terminate the tenancy of defendant No. 2. Thus, the defence is also to the effect that the tenancy was a mouth to month tenancy and not a tenancy for fixed term. These were the main pleas taken by the defendants in the suit.

7. On 13-5-1983, the petitioners filed an application under Order 6, Rule 17 of the Civil P. C. (hereinafter referred to as 'the Code') for amendment of the plaint and, wanted that after para 14 a para 14-A be added and the amendment sought for was as follows :--

"That it is submitted that the defendants are defaulter in the eye of law and thus liable to be evicted for not having paid any amount towards the rent of the suit premises even after the filing of the suit up to the month of April, 1983."
A copy of this amendment petition has been marked Annexure 'I' to the instant re-visional application.

8. The defendants filed a rejoinder thereto and asserted that the proposed amendment was an addition of a new cause of action and could not be joined in one suit and in that view of the matter, the defendants contended that the amendment sought for by the plaintiffs needed to be rejected by the Court. A copy of the rejoinder filed by the defendants has been marked Annexure '2' to the instant application.

9. The Court below, by the impugned order, has rejected the prayer for amendment of the plaint, as sought for by the plaintiffs, holding that the proposed amendment would cause injustice to the defendants. On this solitary ground the amendment has been refused. There is no finding that by the proposed amendment the plaintiffs were bringing in a new cause of action, though it was the solitary plea of the defendants in their rejoinder.

10. It is well settled that even, if new facts are introduced but if those facts do not change the character of the suit, the amendment should be allowed. The test is whether new assertion, a new cause of action and foreign to the scope of the suit, changes the entire complexion of the suit. If it does, then the amendment cannot be allowed.

11. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, as amended from time to time, (hereinafter referred to as 'the Act'), deals with eviction of tenants and prescribes specific grounds for eviction. The grounds prescribed need not be mentioned here. The nature of the suit brought under the Act essentially is one for eviction of the tenant and the landlord can put into service any of the grounds available to him for this eviction.

12. As already mentioned above, in the instant case the plaintiffs-petitioners have asked for eviction of the tenant (defendant No. 1) on two grounds, viz., on the ground of sub-letting by him to defendant No. 2 and on the ground that defendant No. 1 (the tenant) had not paid a single paisa towards rent till the filing of the suit. The question arises, if during the pendency of the suit another ground has become available to the landlord, can the landlord not be allowed to inform the Court of the subsequent event and press into service this additional ground for eviction of the tenant ? It is well settled on well recognised principles that in order to shorten the litigation, to preserve the rights of both the parties and to subserve the ends of justice; the Court can and should take into consideration the subsequent events and adjudicate the rights of the parties and grant relief available, to them. Reference may be made to the cases of (i) Run Vijaya Shahi v. Bala Prasad Motani (MANU/BH/0019/1978 : AIR 1978 Pat 91). (ii) Smt. Abinash Kaur v. Dr. Avinash Nayyar. (MANU/DE/0241/1974 : AIR 1975 Delhi 46) (FB). (iii) Tarakpada Kirti v. Rup-lekha Chatterjee. (MANU/WB/0037/1978 : AIR 1978 Cal 189) and (iv) Prem Lal v. Yadav Chand. (MANU/RH/0008/1979 : AIR 1979 Raj 44).

13. The existence of one or more of the grounds mentioned in the Act for eviction of the tenant does not constitute a necessary part of the cause of action in a suit for eviction of the tenant. A cause of action in a suit under the Act for eviction of the tenant is certainly an accrual of a disability against the tenant pertaining to the grounds mentioned for eviction due to his conduct or Inches, thus disentitling the tenant from the protection against his eviction. There is nothing which debars a Court from permitting the introduction of a cause of action arising subsequent to the filing of the suit by way of amendment so long as the Defendant has an opportunity of meeting the new case by amendment of his written statement and by leading evidence in support of his defence, if any. The Act forbids the Court from passing a decree or order of eviction which is dehors the Act. The existence of one or more of the grounds for eviction mentioned in the Act is a sine qua non to the exercise of jurisdiction by the Court.

14. Thus, for the foregoing reasons, a ground on which the suit for eviction was not initially instituted, but if that ground being a ground for eviction under the Act and being available to the landlord during the suit, can be allowed to be taken by the landlord during the pendency of the suit and the landlord can legally ask the Court to allow amendment of the plaint taking into account the subsequent event after the institution of the suit and can legally press into service for the relief of eviction of the tenant on that ground (which is one of the grounds for eviction under the Act). As already stated above, such amendments on such grounds (of course being available under the Act) being based on subsequent event should be allowed in a suit for eviction against the tenant just to shorten the litigation, to preserve the rights of both the parties and to subserve the ends of justice. Reference may be made to the case of Sachchidanand v. Heeranand, MANU/BH/0066/1983 : AIR 1983 Pat 276:1983 BBCJ (HC) 168).

15. Nobody has appeared for the defendants-opposite parties.

16. Thus, in my opinion, the Court below has committed an apparent error of jurisdiction in refusing to allow the amendment of the plaint. The application is allowed and the impugned order is, accordingly, set aside. The Court below is hereby directed to allow the amendment of the plaint, as sought for, with liberty to the defendants either to amend the written statement or to file additional written statement. The Court below is also directed to dispose of the suit as expeditiously as possible, preferably within six months from the date of the receipt of this order. However, in the circumstances, there will be no order as to costs.



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