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Bhanu Prakash Agarwal Vs. Munnalal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 345 of 1977
Judge
Reported inAIR1979MP157
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 7
AppellantBhanu Prakash Agarwal
RespondentMunnalal and anr.
Appellant AdvocateK.L. Mangal, Adv.
Respondent AdvocateU.K. Jain, Adv.
DispositionRevision allowed
Cases Referred(Haji Mohammad Ishaq v. Mohamed Iqbal and Mohamed Ali and Co). The
Excerpt:
.....is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or, that it is necessary to base the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. held, it is well settled that in proper cases the court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice. tandon) cannot be taken to lay down a good law because sohani, j. having heard the counsel, i am satisfied that the amendment was rightly disallowed......has contended that the impugned order is illegal and the amendment ought to have been allowed in view of the provisions contained in order 6 rule 17 cpc read with o. 7 rule 7 c. p. c. shri u. k. jain, learned counsel for the defendant-non-applicants contended that the amendment has been rightly refused.6. after having heard the learned counsel for the parties i am of the opinion that the revision deserves to be allowed.7. ordinarily, the decree in suit should accord with the rights of the parties as they stand on the date of its institution. this is what has been held by their lordships of the privy council in a case reported in air 1945 pc 62 (doorga prasad chamaria v. secretary of state) but the framers of the civil procedure code thought it necessary to give powers to.....
Judgment:
ORDER

H.G. Mishra, J.

1. This is a revision directedagainst order dated 4-4-1977 passed by the trial Court rejecting the plaintiff's application for amendment to incorporate subsequent event in the plaint.

2. Facts essential for present purposes are that the plaintiff-applicant filed the present suit against the defendant-non-applicants for ejectment from the suit shop on the grounds (i) under Section 12 (1) (a) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the Act) for default of payment of arrears of rent in spite of service of the notice of demand order; (ii) Section 12 (1) (c) of the Act viz., creation of nuisance and (iii) Section 12 (1) (h) of the Act viz., requirement for construction.

3. The defendant submitted written statement and denied the claim of the plaintiff for ejectment and alleged that none of the grounds are available to the plaintiff.

4. The issues were framed by the trial Court, Thereafter before commencement of the evidence of the parties, the plaintiff submitted an application dated 9-12-1975 for amendment of plaint on the basis of subsequent event viz., that the defendant has during the pendency of the suit, unlawfully inducted in a sub-tenant Jagdish Chandra S/o Ram Dayal in the suit shop. This application was opposed by the defendant-non-applicants and has been rejected by the impugned order. Hence this revision.

5. Shri K. L. Mangal, learned counsel for the plaintiff-applicant has contended that the impugned order is illegal and the amendment ought to have been allowed in view of the provisions contained in Order 6 Rule 17 CPC read with O. 7 Rule 7 C. P. C. Shri U. K. Jain, learned counsel for the defendant-non-applicants contended that the amendment has been rightly refused.

6. After having heard the learned counsel for the parties I am of the opinion that the revision deserves to be allowed.

7. Ordinarily, the decree in suit should accord with the rights of the parties as they stand on the date of its institution. This is what has been held by their Lordships of the Privy Council in a case reported in AIR 1945 PC 62 (Doorga Prasad Chamaria v. Secretary of State) but the framers of the Civil Procedure Code thought it necessary to give powers to courts of law to give effect to subsequent event also. Accordingly, where it is shown that the original relief claimed has by arising of subsequent change of circumstance, became inappropriate, or that it is necessary to have the decision of court on altered circumstance in order to shorten litigation or do complete justice between the parties, it is incumbent upon a court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is passed. This is what has been held by a Full Bench of this Court in case reported in AIR 1948 Nag 1 (Mandli Prasad v. Ramcharanlal). Similar is the view of their Lordships of the Rajasthan High Court in a case reported in AIR 1963 Raj 198 (Dhan Singh Yadav v. BadriPrasad). In AIR 1948 Nag. 1, it has been held that;--

'A suit must be tried in all its stages on the cause of action as it existed at the date of its commencement The court, however, may in suitable cases take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions This doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or, that it is necessary to base the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. AIR 1915 Cal 103 Rel on.

8. A Division Bench of this Court in case reported in 1961 Jab LJ 780 (Harishchandra Behara v. Garbhoo) has held that:

'Under O. 7 R. 7 also the subsequent event could be considered to do complete justice between the parties and to shorten litigation between them.'

9. Another Division Bench of this Court in case reported in 1961 Lab LJ (SN) 202 (Onkarnath v. Prahladdas) have held that:

'A suit was brought by a sub-partner to dissolve a firm and for accounts. It was defended on the ground that a sub-partner had no right to sue for dissolution or for accounts. During the pendency of the suit, the partnership dissolved due to efflux of time. The trial court held that although the right to sue for accounts did not inhere in the plaintiff on the date of the suit, it accrued in his favour on the dissolution of the partnership. This fresh ground for the relief claimed by the plaintiff which had arisen on account of subsequent events was allowed to be introduced in the plaint by amendment. The objections raised were that the amendment could not be allowed beyond limitation and that subsequent events could not be made basis of the amendment.

Held: the amendment on being allowed would except where new parties are added, relate back to the date of the suit. AIR 1956 Trav, Co. 97, AIR 1957 SC 357, AIR 1957 SC 363 relied on.

Further held that amendment of pleadings can be allowed so as to include a ground for relief arising from subsequent events. AIR 1948 Nag 1, AIR 1940 Pat 204, AIR 1933 Cal 534, AIR 1940 Mad 412, relied on.'

10. The Full Bench of the Delhi High Court in the case reported in AIR 1975 Delhi 46 (Smt. Abnash Kaur v. Dr. Avinash Nayyar), has held as under:

'The Rent Controller has the power and jurisdiction to allow an amendment to add a new ground of eviction which has arisen subsequent to the filing of the eviction petition and which is different from the ground on which the eviction petition had been filed. There is no inflexible rule that a cause of action arising subsequent to the filing of the petition for eviction cannot be added in the petition by way of amendment. Civil Misc. Petn. No. 3337D of 1963 D/-18-11-1964 (Punj) Overruled. Case law discussed.'

11. In AIR 1977 Cal 108 (Ayesha Khatoon v. Durge Sahaya) has also taken the view which is in line with the view of this court which runs as under:--

'A (Landlord) filed a suit for ejectment of B (tenant) on the ground of forfeiture of lease. The suit was dismissed by the first court and A filed an appeal, Pending appeal the period of lease expired and the appellant applied for amendment of plaint by claiming relief on the additional ground of expiry of lease.

Held, it is well settled that in proper cases the court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice. This power may be exercised even by the court of appeal as an appeal is only in the nature of a rehearing.'

12. The principles laid down by their Lordships of the Supreme Court in case reported in AIR 1975 SC 1409, (Pasupuleti Venkateswarlu v. Motor & General Traders) run as under:--

'For making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases musttake cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.

Where, during the pendency of a proceeding under Rent Control legislation by the landlord for permission to evict the tenants, a subsequent event in the facts of the case takes place which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in taking cognizance of the new development cannot be said to be wrong or illegal, AIR 1941 FC 5. Rel. on.'

Therefore, the court has power to take notice of subsequent events. From the principles laid down in the aforesaid cases, it is clear that a court of justice have power to take notice of events which have happened after institution of suit.

13. The Madras High Court has as long back as in 1926 has taken a similar view which finds place in case reported in AIR 1926 Mad 6 (Valluru Appalasuri v. Sasapu Kannamma Nayuralu). The principles laid down therein run as under:--

'Events that happened, even after the filing of the suit including those that add to the title of the plaintiff may be taken notice of so that a cause of action that arose after the filing of the suit can be included by the amendment of a plaint. But the discretion ought not be exercised when there is a change of jurisdiction when there is a great delay in making the application, and may not be exercised if a fresh enquiry on other facts is necessary. But when these features do not exist, the amendment ought, as a general rule, to be allowed to avoid multiplicity of proceedings, In all such cases, the only question of consequence is one of court-fees, a matter with which the parties are not concerned and the opposite party is not deprived of any defence which is open to him.'

14. Shri U. K. Jain argued that this Court has taken a contrary view in Civil Revn. No. 270 of 1974 (Shiv Dayal Nagpal v. Baby Bai) decided on 27-2-1975 and Civil Revn. No. 506 of 1973 (Babulal v. Shyam Sunder Saxena) decided on 30-11-1973. Both these cases have come to be decided by Hon'ble JusticeS. R. Vyas. These cases came to be decided prior to the case of Pasupuleti Venkateswarlu (supra). The date of decision of the Supreme Court case is 18-3-1975. Therefore, this Court was free to take a view relied on by the learned counsel for the defendant-non-applicants.

15. Another ejectment case came to be decided by Hon'ble S. R. Vyas, J. himself which is in second appeal No. 179 of 1970 (Jharnalal v. Mahila Minti Bai) decided on 5-8-73 (Madh Pra). In that case, it was said on behalf of tenant that due to happening of subsequent events the requirement of the plaintiff no longer exists and leave to produce documents by way of additional evidence under O. 41 R. 27 was also sought. Hon'ble Vyas, J. has dealt with this point in para 16 of that judgment in the following manner:

'16. It was urged that the plaintiff wanted the suit accommodation for carrying on some business, as she had entered into an agreement with some manufacturers Exs. P-2, P-3, P-4 and P-22 are the documents relied on by the plaintiff. Oral evidence was given by Shardacharan (P. W. 1), Roop Chand (P. W. 2), Laxminarayan (P. W. 3) and Givinddas (P. W. 4) on behalf of the plaintiff. In this Court a number of documents were filed by both the parties to show that either the plaintiff requires the suit accommodation for the aforesaid business or that the plaintiff's requirement does no longer exist. These documents have not been proved but the parties were heard on the assumption that whatever is mentioned in these documents may be considered for the purpose of the plaintiff's requirement. In fact, applications were made under Order 41 Rule 27 CPC for accepting these documents as an additional evidence. I would have considered these documents if, in the light of what I have said above, the case was not required to be sent back to the trial Court. Since a finding on the question as to whether the defendant was or was not in default of payment of rent is needed, the case should be remanded to the trial Court, where, I think it proper, the parties may reagitate this question on the basis of such oral and documentary evidence as they may desire to adduce. I, however, do not think it eithernecessary or proper to give any finding on the question of the plaintiff's genuine requirement in absence of adequate proof with regard to the said documents.'

From the perusal of the aforesaid paragraph, the Hon'ble Judge who happened to decide revision Nos. 270/74 and 506/73 himself appears to have changed his view and became of the view that a court of justice has power to mould relief in accordance with changed circumstances in ejectment suit by taking subsequent events into - notice. Moreover, in view of the pronouncement of their Lordships of the Supreme Court in the case Pasupuleti Venkateswarlu (supra) authority contrary to that view ceases to have any binding efficacy.

The ratio of AIR 1052 Punj 221 (Kesho Ram Passey v. Dr. P. C. Tandon) cannot be taken to lay down a good law because Sohani, J. who happened to decide the case of Kesho Ram Passey, overlooked the dictum of Full Bench of this Court reported in AIR 1948 Nag 1 and also overlooked the ratio of case reported in AIR 1941 FC 5 (Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri) wherein the law on the power of taking notice of subsequent events has been laid down thus:--

'The hearing of an appeal under the procedural law of India is in the nature of rehearing and therefore in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed, against. Consequently, the appellate Court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower court's decision was correct according to the law as it stood at the time when its decision was given.'

Besides this, provision of Order 7, Rule 7, CPC have not been taken into consideration in Keshoram's case (supra).

16. The ratio of the case reported in AIR 1952 Punj 221 (Kesho Ram Passey v. Dr. P. C. Tandon) is thus:

'In 1947 a suit for ejectment of the defendant was filed, on the ground that he had sub-let the premises to another person. Where in appeal the suit was remanded the plaintiff sought to amend the plaint by adding twomore causes of action, namely that the premises, were sublet in 1947 and that the defendant had made structural alterations to the premises, presumably after the suit was filed:

Held that the plaintiff could not be allowed to amend the plaint by adding new causes of action which had arisen after the filing of the suit. If the plaintiff has a grievance against the defendant for giving him other causes he must pursue his remedy by another suit.'

It cannot be taken to lay down correct law in view of the considerations mentioned by me hereinbefore.

17. The ratio of the case reported in AIR 1961 Pat 302, State of Bihar v. Ramgarh Farms and Industries Ltd. cannot be usefully pressed into their service by the non-applicants. By amendment which was under consideration before their Lordships of the Patna High Court a new assertion and fresh cause of action entirely foreign to the scope of the suit and sought to change its entire complexion of the suit itself was being sought and was rightly disallowed. Here the suit is for ejectment and after amendment in question will continue as before ejectment. Complexion of the suit in the present case is not going to be changed by the impugned amendment. As such reliance on the ratio of the Patna case is not available to the non-applicants in the present case.

18. Reliance on the ratio of the Supreme Court case reported in AIR 1965 SC 1008 (Municipal Corporation of Greater Bombay v. Lala Pancham) is also not available in the present case because in the present case it is a case of adding additional ground for seeking the same relief of ejectment already claimed in the plaint. In the case of Municipal Corporation of Greater Bombay (supra) the considerations for disallowing the amendment in question were altogether different. A plea of fraud for which there was not even slightest basis in the plaint as it originally stood was tried to be introduced by the amendment. In the facts and circumstances of that case the amendment was disallowed because had the case of fraud been true, there was no reason why there should not have been any germs of plea of fraud in the plaint as originally instituted. Here it is the action of the defendant which has given rise to the subsequent event,namely, inducting by him of sub-tenant after institution of the suit. The amendment, therefore, has been necessitated by the action of the defendant himself, which cannot be regarded to be a circumstance within control of the plaintiff. Therefore, also the ratio of the case reported in AIR 1965 SC 1008 cannot govern the situation.

19. Shri U. K. Jain further places reliance on the case of Taramal v. Laxman Sewak Surey (1971 MPLJ 888) in para 12 whereof it has been observed that:--

'Lastly, the learned counsel for the appellant makes an effort to get a remand of the suit by pressing the application for amendment which has been rejected by the court below. Having heard the counsel, I am satisfied that the amendment was rightly disallowed. The protection to a statutory tenant lapses with the passing of a decree and such a person has no right to bring on record new circumstances which were not in existence on the date of passing of the decree. That is, a conclusion which is irresistible from the definition of a tenant in Section 2 (i) of the Act which excludes a person from the category of 'tenant' against whom any order or decree for eviction has been made. Although, an appeal is in the nature of a continuation of the suit, nevertheless, the statutory tenant cannot urge any new facts which subsequently come into existence. Apart from this the application cannot be granted as it is vague and lacking in particulars, and besides, it is not necessary for determining the real questions in controversy between the parties. The application cannot also be allowed because it is not bona fide. The effect of allowing the amendment would necessarily necessitate in a remand of the suit which would cause manifest injustice to the plaintiffs. It must, accordingly, be held that the application was rightly rejected.'

20. In the present case, after framing of the issues evidence of the parties have not yet started. As held in AIR 1968 SC 647 (State of Orissa v. Sudhansu Sekhar Misra) a case can be deemed to be an authority for what it actually decides. The relevant ratio runs as under:--

'A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein norwhat logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a Judgment and to build upon it. 1901 AC 495 Rel. on.'

Therefore, the case of Taramal (supra) cannot govern the situation.

21. Hon'ble Sen, J. in another case reported in 1971 MPLJ (SN) 104, (Bhaiyalal v. Chhotelal Tiwari) has observed as under:--

'The continued existence of this requirement is an essential pre-requisite for giving the plaintiff the relief of ejectment.'

Thus this case happened to he derided on the principal that court has power to take into notice subsequent events to mould the relief.

22. Lastly, Shri U. K. Jain placed reliance on the case reported in AIR 1978 SC 798 (Haji Mohammad Ishaq v. Mohamed Iqbal and Mohamed Ali and Co). The portion pressed into service from this case runs as under:--

'The amendment of the written statement sought in appeal was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition;

Held (by the Supreme Court) that the High Court in appeal rightly rejected all the petitions for amending their written statement and adducing additional evidence.'

The ratio of this case is tangentically off the point and the reliance thereof is wholly misconceived. The nature of the present suit will not be changed at all, by the impugned amendment. It was a suit for ejectment even after the amendment in question.

23. From the aforesaid discussion, it will be clear that the trial court acted contrary to the provisions of Order 6 Rule 17 read with Order 7 Rule 7 C. P. C. in rejecting the application for amendment. The impugned order cannot be allowed to continue to stand because the impugned order is illegal and passed with material irregularity in exercise of the jurisdiction. The plaintiff cannot be thrown out and left to institute a fresh suit on the basis of subsequent event (in the present case on the basis ofsub-letting). As such the impugned order deserves to be set aside.

24. Accordingly, the revision is allowed. The impugned order is set aside and the amendment application of the plaintiff is hereby allowed. The plaintiff will be allowed to make amendment on or before 14-8-1978. Since the amendment is necessitated by conduct of the defendant himself, therefore, I am not awarding any costs consequential to the amendment. The defendant will be given an opportunity to make consequential amendment, if he so elects to make. No order as to costs of this revision in view of the nature of the controversy before me. No notice need be issued to the parties for appearance on 14-8-1978 as this date is fixed in the presence of their counsel. The record of the lower court will be sent back to reach before the said date.


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