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Chhotelal Vs. Akbarali and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 422 of 1979
Judge
Reported inAIR1983MP50
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12(1)
AppellantChhotelal
RespondentAkbarali and anr.
Appellant AdvocateR.G. Waghmare and ;R.R. Waghmare, Advs.
Respondent AdvocateS.L. Garg and ;R.S. Garg, Advs.
Cases ReferredHasmat Rai v. Raghunath Prasad
Excerpt:
.....consideration subsequent events. ' the aforesaid decision clearly establishes that the ground for eviction must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. this restriction on the right to institute a suit for eviction only emphasises that if a suit for eviction were to be brought without disclosing a ground specified in section 12 (1) of the act, then in that case, the plaint would be liable to be rejected for failure to disclose cause of action......was allowed by the trial court, but on appeal, the appellate court relying upon a division bench decision of this court in ratanlal gulzarilal vaishya v. damodardas girdharilal vaishya (1961 mplj 7) reversed that order. in the second appeal, it was urged before the learned single judge, on behalf of the respondents, that the appellate court had committed an error in rejecting the application for amendment. reliance was placed on the decision of a division bench of this court in sunderlal hazarilal v. har prasad (1980 mplj 182). the learned single judge felt that there was an apparent conflict in the two division bench decisions of this court in 1961 mplj 7 (supra) and 1980 mplj 182 (supra). that is how the aforesaid question came to be referred to this full bench.3. to answer the.....
Judgment:

Sohani, J.

1. This Full Bench has been constituted to decide the following question referred by Hon. Vijaywargiya. J. in Civil Second Appeal No. 422 of 1979:

'Whether a ground for eviction under Section 12 (1) of the Act, which was not in existence at the time of the filing of the suit but came into existence during the pendency of the suit can be made a ground for eviction by amendment of the plaint and whether a decree for eviction can be passed on such ground?'

2. The facts giving rise to this reference; briefly are as follows:--

During the pendency of the suit for eviction, the plaintiff-respondents filed an application for leave to amend the plaint by claiming the relief of eviction on an additional ground specified in Section 12 (1) (h) of the M. P. Accommodation Control Act, 196l (hereinafter referred to as 'the Act'), that the suit accommodation was also required for reconstruction, which could not be done without evicting the defendant-tenant from the leased premises. The application for amendment was allowed by the trial Court, but on appeal, the Appellate Court relying upon a Division Bench decision of this Court in Ratanlal Gulzarilal Vaishya v. Damodardas Girdharilal Vaishya (1961 MPLJ 7) reversed that order. In the second appeal, it was urged before the learned single Judge, on behalf of the respondents, that the Appellate Court had committed an error in rejecting the application for amendment. Reliance was placed on the decision of a Division Bench of this Court in Sunderlal Hazarilal v. Har Prasad (1980 MPLJ 182). The learned single Judge felt that there was an apparent conflict in the two Division Bench decisions of this Court in 1961 MPLJ 7 (supra) and 1980 MPLJ 182 (supra). That is how the aforesaid question came to be referred to this Full Bench.

3. To answer the question referred to us, it would be necessary to consider whether a ground for eviction under a Rent Act, can be held to be a part of the cause of action. Some courts have taken the view that grounds of ejectment are not a part of cause of action in a suit for ejectment (see Zainab Bai v. Navayug Chitrapat Co. Ltd. (AIR 1969 Bom 194) and Premlal v. Jadavchand (AIR 1979 Raj 44), But after the decision of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Animal (AIR 1979 SC 1745), it is clear that determination of lease in accordance with the provisions of the Transfer of Property Act is unnecessary and that making out a case under the Rent Act for eviction of the tenant is by itself sufficient. It cannot (now) be taken to be well-settled that a ground of eviction under the Rent Act constitutes a cause of action.

4. The next question that arises for consideration is whether a plaintiff can by way of amendment to the plaint, add a cause of action which came into existence during the pendency of the suit. As observed by the Privy Council in Ma. Shwe Mya v. Maung Mo Hnaung (AIR 1922 PC 249), all rules of Court are nothing but provisions intended to secure the proper administration of Justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised. Rules of procedure as laid down by the Supreme Court in Jai Jai Ram Ram Manohar Lal v. National Building Material Supply, Gurgaon (AIR 1969 SC 2267) are intended to be a handmaid to the administration of Justice. It is true that Courts have declined to allow amendments when by permitting the amendment, injustice may result to the other side. The ultimate test, as observed by Batchelor, J. in Kisandas Rupchand v. Rachappa Vithoba Shilwant (1909) ILR 33 Bom 644, is can the amendment be allowed without injustice to the otherside? This observation of Batchelor. J. has been approved by the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil (AIR 1957 SC 363). Therefore, it is in the light of this test that we have to consider as to whether by permitting a plaintiff to amend the plaint by introducing a ground of ejectment, which has come into existence subsequent to the institution of the suit, injustice would result to the other side. Shri Waghmare, the learned counsel for the defendant was unable to point out any such injustice. We may, in this connection, usefully refer to the decision of the Full Bench of the Delhi High Court in Smt. Abnash Kaur v. Dr. Avinash Nayyar (AIR 1975 Delhi 46). It was urged on behalf of the defendant that the aforesaid decision of the Delhi High Court cannot be pressed into service while dealing with the provisions of the M. P. Accommodation Control Act 1961. We shall deal with this submission a little later, but we may add that the aforesaid decision of the Delhi High Court, does not turn on the language employed in the Rent Act in force in Delhi. The aforesaid decision emphasises that permitting a plaintiff to amend the plaint in such a case would result in avoiding multiplicity of proceedings, without any injustice being caused to the defendant.

5. The decision in 1961 MPLJ 7 (supra) on which reliance was placed by Shri Waghmare, the learned counsel for the defendant, dealt with the question as to whether a decree for eviction can be passed on the ground of denial of the plaintiffs' title by the defendant in the written statement. The Division Bench placed reliance on the decision of the Privy Council in Maharaja of Jeypore v. Rukmani Pattamahdevi (AIR 1919 PC I), where it was held that denial in a suit by the defendant of the landlord's title, would not work a forfeiture of which advantage could be taken in that suit, because the forfeiture must accrue before the institution of the suit. The question as to whether a plaintiff can, by amendment, add to the ground of eviction pleaded in a suit for eviction, any other ground of eviction did not directly come up for consideration in 1961 MPLJ 7 (supra). At this stage, we may also refer to the decision reported in 1980 MP LJ 182 (supra) on which reliance was placed by the plaintiffs. The question referred to the Division Bench in that case was whether an appellate Court could take cognizance of subsequent events happening after a decree had been passed by the lower Court in favour of the plaintiff under Section 12 (1) (e) of the M. P. Accommodation Control Act 1961. It is true that the Division Bench in that case has held that the landlord could introduce in the plaint by way of amendment any ground other than those specified in Clauses (a), (c), (d) and (o) of Section 12 (1) of the Act, But as already observed, the question as to whether amendment in such cases is or is not permissible, was not before the Court. The short question for consideration was whether subsequent events could be taken note of by the appellate Court. This is clear from the question referred to the Division Bench which was as follows:--

'Whether an appellate Court can take cognizance of subsequent ovents happening after a decree has been passed by the lower Court in favour of the plaintiff-landlord under Section 12 (1) (e) of the M. P. Accommodation Control Act, 1961?'

The impact of subsequent events on a suit for eviction on the ground specified in Section 12 (1) (e) of the Act, has been dealt with by the Supreme Court in Hasmat Rai v. Raghunath Prasad (AIR 1981 SC 1711), at page 1717 as follows:--

'Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up, which would show that the landlord's requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the Court to take into consideration subsequent events. He can be precluded from so contending when the decree or order for eviction has become final. In view of the decision in Pasupuleti's case (supra) the decision of the Madhya Pradesh High Court in Taramal's case must be taken to have been overruled and it could not be distinguished only on the ground that the definition of 'tenant' in the Madhya Pradesh Act is different from the one in Andhra Pradesh Act.' The aforesaid decision clearly establishes that the ground for eviction must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. This decision therefore, makes it clear that the difference in the two clauses, one occurring in the M. P. Act that 'no suit for eviction can be filed except on a, ground specified in the Act' and the other occurring in other Rent Act that 'no decree for eviction shall be passed unless a ground specified in the Act has been made out' would not be of much consequence for arriving at the decision as to whether a case for eviction has been made out by the defendant.

6. It was, however, urged on behalf of the defendant by Shri Waghmare that the language of Section 12 (1) of the Act rules out induction of additional ground for eviction after the institution of a suit for eviction. The contention cannot be upheld. Section 12 (1) of the Act merely provides that no suit shall be filed for eviction except on a ground specified in that section. This restriction on the right to institute a suit for eviction only emphasises that if a suit for eviction were to be brought without disclosing a ground specified in Section 12 (1) of the Act, then in that case, the plaint would be liable to be rejected for failure to disclose cause of action. There is nothing in the language of Section 12 (1) of the Act, which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of Section 12 (1) of the Act. It may be, that in some cases, the requirement of a particular ground specified in Section 12 (1) of the Act is such as cannot be fulfilled unless that ground has come into existence prior to the filing of the suit, as in the case of a ground specified in Section 12 (1) (d). But tenability of a ground sought to be added by way of amendment, does not affect the jurisdiction of a Court to permit that amendment. It may be that in such a case, it would be a sound exercise of discretion by the court, if leave to amend is refused inasmuch as a decree for eviction cannot be passed on such a ground. But as already observed, this aspect of the matter has no impact on the question of jurisdiction of the Court to permit the plaintiff to amend the plaint by adding a new ground for eviction. Any observation to the contrary which can be read in 1961 MPLJ 7 (supra) or 1980 MPLJ 182 (supra) does not, in our opinion lay down correct law.

7. To sum up, our answer to the question referred to us, is that a ground for eviction under Section 12 (1) of the Act, which was not in existence at the time of the filing of the suit, but came into existence during the pendency of the suit, can be made a ground for eviction by amendment of the plaint and a decree for eviction can be passed on such ground, if that ground is established by the plaintiff.

8. The case shall now be placed before the learned single Judge for disposal.

Parties shall bear their own costs of this reference.


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