Monday 19 February 2018

Whether grounds for eviction can be added by amendment at appellate stage

Undisputedly, the application for amendment was made during the pendency of the proceedings. Appeal is a continuation of the suit. Merely because the application has been filed during the pendency of the Appeal, it cannot be said that no amendment to the plaint can be allowed. The decision of the learned Single Judge of this Court in the matter of Mudra Salt and Chemical Industries v. Collector, Thane and others reported in MANU/MH/0378/2001 : (2001)4BOMLR534 is to the effect that the only point which is to be considered is, whether the proposed amendment is necessary for an apt decision in the matter in the dispute between the parties. Merely addition of one or more ground for eviction cannot amount to change in the nature of the proceedings for eviction of a tenant and, therefore, the impugned order cannot be sustained as apparently it has been passed in the improper exercise of its jurisdiction by the Court below.
IN THE HIGH COURT OF BOMBAY

Civil Revision Appln. No. 639 of 2002

Decided On: 04.06.2002

 Chanchalben wd/o Dharshi Shah and Ors. Vs. Municipal Corporation of Greater Mumbai and Anr.

Hon'ble Judges/Coram:
R.M.S. Khandeparkar, J.


Citation:2002(4) MHLJ382,2002 BOM RC 510





1. Heard the learned Advocates for the parties. Rule. By consent, rule made returnable forthwith. Perused the records.

2. The petitioners challenge the order dated 16th January 2002 passed by the Court of Small Causes of Bombay in Appeal No. 248 of 2001 rejecting the Application for amendment of the original plaint for eviction filed by the petitioners.

3. The facts, in brief, relevant for the decision are that the suit was filed by the husband of the petitioner No. 1 for eviction of the respondents/tenants on the ground of bona fide requirement of the suit premises. The original plaintiff expired during the proceedings of the suit and the petitioners were brought on record as the legal representatives. The suit was dismissed by the trial Court. Aggrieved by the said order, the petitioners filed appeal against the said order. During the pendency of the appeal, the petitioners filed an application for amendment of the plaint thereby adding two more grounds for eviction of the respondents from the suit premises. As regards the proposed amendment, it is the case of the petitioners that the suit premises are being kept closed and locked without being used for the purpose for which it was let out and on account of destruction of residential house of the petitioner consequent to earthquake at Kutch, in the State of Gujrath, the petitioners have lost their entire property and they are in need of the vacant premises for their occupation.

4. The lower Appellate Court has, however, rejected the application for amendment on the ground that the petitioner No. 1, if so desires, can argue about the subsequent events at the time of hearing of the Appeal and that the same cannot be by way of amendment to the plaint and by allowing the petitioner, to examine witnesses. In other words, there is no dispute that the proposed amendment relates to the events which have occurred subsequent to disposal of the proceedings before the trial Court, and the landlord wants to seek relief on the basis of subsequent events by bringing them on record during the pendency of the Appeal. Therefore, the points which arise for consideration, are firstly, whether to bring on record the events which have occurred subsequent to the passing of the decree by the trial Court, the plaint can be allowed to be amended, during the pendency of appeal from decree of trial Court? Secondly, whether such amendment to the plaint at the appellate stage can be rejected on the ground that the parties would to be entitled to lead evidence on such amendment being allowed? And thirdly, whether the eviction of a tenant can be or decreed on the basis of the subsequent events arising during the pendency or after the disposal of the case by the trial Court, in the absence of such events are brought on record by way of amendment and issues arising therefrom are adjudicated upon in accordance with the provisions of law?

5. In fact, the law as regards the amendment to the pleadings is well settled. The amendment has to be for the purpose of determining real question in controversy between the parties to the proceedings. The power to allow the parties to amend their pleadings is to be exercised judiciously on consideration of the circumstances of each case. The Apex Court in Pirgonda Hongonda Patil v. Kalgond Shidgonda Patil reported in MANU/SC/0002/1957 : [1957]1SCR595 , had approved the ruling of this Court in Kisandas Rupchand v. Rachappa Vithoba Shilwant reported in ILR 33 Bom. 644 to the effect that amendment which does not work injustice to the other side and to the extent necessary to determine the real question in controversy between the parties is to be allowed.

6. Equally it is well established that every suit has to be tried on the original cause of action stated in the plaint and this principle applies to the appeals as well. However, there are few exceptions to the rule. At times, the relief claimed in the plaint becomes inappropriate and insufficient with passage of time or it turns out to be infructuous with changes brought about either by law or on account of certain events happenings during the pendency of the suit or appeal.

7. In Vishwasrao Dadasaheb v. Shankarrao D. Kalyankar reported in MANU/SC/1218/1999 : AIR2000SC3613 it was held that it is settled law that it is open to a Court to take into consideration the subsequent events while dealing with the matters relating to relationship of landlord and the tenant governed by law enacted in that regard for passing an appropriate order.

8. In Lek Raj v. Mani Lal reported in AIR 2001 SC 996 it was ruled that in case the subsequent events or fact having bearing on the issue or relief in a suit or proceedings, which any party seeks to bring on record, the Court should not shut its door. The law as regards entitlement of landlord to amend the pleading by adding new and different ground arising from events occurring subsequent to the institution of eviction proceedings is well established. The Calcutta High Court in Tinkari Das v. Jamuna Bala Dasi reported in MANU/WB/0104/1973 : AIR1973Cal448 has held that in a suit for recovery of premises on the ground of forfeiture of defendants tenancy, the Court can allow to take additional ground for eviction, such as the determination of the lease by efflux of time.

9. It is the contention of the petitioners that because of the earthquake in Gujrath they have lost their entire property along with the residential premises and therefore, they are in need of the suit premises for the residence and hence they want to amend the original application for eviction by including said new ground for eviction. The lower Appellate Court has rejected the same solely on the ground that the trial Court has dismissed the application for eviction and no amendment in the original application can be allowed at the appellate stage. It is well settled that the landlord can seek amendment to the eviction application of the premises even at the appellate stage by taking additional ground for eviction when the cause of action for the eviction of the tenant on such additional ground arises during the pendency of the proceedings, and an appeal is continuation of the proceedings in the trial Court.

10. Undisputedly, the application for amendment was made during the pendency of the proceedings. Appeal is a continuation of the suit. Merely because the application has been filed during the pendency of the Appeal, it cannot be said that no amendment to the plaint can be allowed. The decision of the learned Single Judge of this Court in the matter of Mudra Salt and Chemical Industries v. Collector, Thane and others reported in MANU/MH/0378/2001 : (2001)4BOMLR534 is to the effect that the only point which is to be considered is, whether the proposed amendment is necessary for an apt decision in the matter in the dispute between the parties. Merely addition of one or more ground for eviction cannot amount to change in the nature of the proceedings for eviction of a tenant and, therefore, the impugned order cannot be sustained as apparently it has been passed in the improper exercise of its jurisdiction by the Court below.

11. As regards the second point for consideration, it is to be noted that once the plaint is amended, the Court will have to ask the defendant to file additional written statement with reference to the amended portion of the plaint. This is evident from the Order 8, Rule 11 read with other Rules of Order 8, more particularly Rules 2 to 5 and Rule 10 of Civil Procedure Code. The said rules clearly require the defendant to come out with specific denial with necessary details and not to be evasive in answers to the pleadings in answer to those in the plaint. When the plaint is allowed to be amended, the defendant must get opportunity to meet the case put forth by the plaintiff by way of amendment to the plaint. The defendant could avail such opportunity pursuant to the provisions of law contained in Order 8, Rule 9 of Civil Procedure Code.

12. Once the plaint is amended and the additional written statement is filed, the Court will have to ascertain whether such additional pleadings in the plaint and the written statement give rise to additional issue or issues, and if so, to frame such issue or issues, as the case may be, in exercise of powers under Order 14 of Civil Procedure Code. Once issue is framed, the parties to the proceedings would be entitled to lead whatsoever evidence the parties want to produce in relation to such issue, in accordance with the provisions of law, contained in Order 18, Rule 2 Civil Procedure Code and in that regard, the Court is empowered to permit the parties to examine any witness or witnesses whose testimony would be relevant for the decision of such issue. Indeed the legislature has given ample powers to the Court in that regard to be exercised at any stage of the proceedings and the same is apparent from Order 18, Rule 2(4) of Civil Procedure Code. The said sub-rule provides that, "notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage." The Sub-rule (1) thereof deals with the procedure regarding the production of evidence by the parties having right to begin, the Sub-rule (2) deals with production of evidence by the opposite party and Sub-rule (3) is about the right of the first party to reply on the whole case. Even after such address by the first party on the whole case, the Court is empowered to allow the parties to lead further evidence in view of provisions of law contained in Sub-rule (4). The expression "at any stage" would include the stage even after closure of the trial as well as during the pendency of the appeal. Allowing the parties to lead further evidence is consequential to the amendment of the pleadings. This conclusion is inevitable considering the provisions of law relating to the amendment to the plaint, additional written statement and right of the parties to prove their contentions in relation to the issues arising for determination in the suit. The net result of the above discussion is, therefore, that even at the appellate stage if the parties are allowed to amend the pleadings, they would be entitled to lead evidence if the issues arising out of the amended pleadings are of facts or mixed questions of law and facts. Being so, merely because the parties would be entitled to lead further evidence, it should not be a ground for rejection of the application for amendment.

13. As regards the third point for consideration, the same stands completely answered by the Apex Court in Om Prakash Gupta v. Ranbir B. Goyal reported in AIR 2002 SCW 278. The Apex Court has ruled thus :

"12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which or in their impact, is expected to have resort to amendment of pleadings under Order 6, Rule 17 of the Civil Procedure Code. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the pies . In Trojan & Co. v. R. M. M. N. Nagappa Chettiar, MANU/SC/0005/1953 : [1953]4SCR789 , this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief, In Sri Mahant Govind Rao v. Sita Ram Kesho and Ors. (1898) 25 Indian App 195 their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted."
In other words, unless the subsequent events are brought on record, the parties are entitled to take benefit of such events.

14. In the result, the petition succeeds. The impugned order is hereby set aside and the application for amendment filed by the petitioners is allowed. The amendment to be carried out within the time to be fixed by the lower Appellate Court. Needless to say that pursuant to the amendment of the original application, the Respondents would be entitled to file additional written statement and the Court will have to frame issue/issues arising from such amended plaint and additional written statement and in case of framing of the issue/issues of fact or mixed question of facts and law, the parties would be entitled to lead evidence in relation thereto. The lower Appellate Court shall pass an appropriate order in that regard. Rule is made absolute in above terms with no order as to costs.

Certified copy expedited.


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