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Prem Lal Vs. Jadav Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 459 of 1979
Judge
Reported inAIR1979Raj44; 1977()WLN332
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1); Code of Civil Procedure (CPC) , 1908 - Sections 153 - Order 6, Rule 17; Transfer of Property Act, 1882 - Sections 106
AppellantPrem Lal
RespondentJadav Chand and anr.
Appellant Advocate N.P. Gupta, Adv.
Respondent Advocate Rajendra Mehta, Adv.
DispositionRevision dismissed
Cases Referred(supra) and Kedarnath v. Panadevi
Excerpt:
civil procedure code order 6 rule 17 and rajasthan premises (control of rent and eviction) act, 1950 - section 13(1) is a procedural restriction--grounds of ejectment in plaint do not constitute cause of action--amendment of suit will not alter nature and character of suit.;the effect of allowing the amendment will not alter the nature and character of the suit, nor will it cause any prejudice to the defendant it still remains a suit based on the original cause of action i.e., on determination of the inral relationship of the landlord and the tenant, there is no question of taking away from the defendant any legal right which has accused to him by lapse of time, nor does the amendment introduce a totally different, new and inconsistent case.;section 13(1) of the rajasthan premises.....a.p. sen, ag. c.j.1. this is a reference to the division bench for reconsideration of the correctness of the decisions of jagat narayan j., in rajeshwar dayal v. padam kumar kothari (1969 raj lw 546) : (air 1970 raj 77) and reiterated by him in kedarnath v. pana devi (1972 wln 501) 8 (air 1973 raj 24) holding that an application by the plaintiff for amendment of the plaint seeking to introduce a new ground of eviction viz., on the ground of default based on clause (a) of sub-section (1) of section 13 of the rajasthan premises (control of rent and eviction) act, 1950, be allowed under section 153 or order 16, rule 17 of the code of civil procedure, where such ground arises after the institution of a suit for the eviction of the defendant on one or more of the grounds set forth in section.....
Judgment:

A.P. Sen, AG. C.J.

1. This is a reference to the Division Bench for reconsideration of the correctness of the decisions of Jagat Narayan J., in Rajeshwar Dayal v. Padam Kumar Kothari (1969 Raj LW 546) : (AIR 1970 Raj 77) and reiterated by him in Kedarnath v. Pana Devi (1972 WLN 501) 8 (AIR 1973 Raj 24) holding that an application by the plaintiff for amendment of the plaint seeking to introduce a new ground of eviction viz., on the ground of default based on Clause (a) of Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, be allowed under Section 153 or Order 16, Rule 17 of the Code of Civil Procedure, where such ground arises after the institution of a suit for the eviction of the defendant on one or more of the grounds set forth in Section 13 (1) of the Act, inasmuch as that would be tantamount to allowing the plaintiff to include a cause of action which had not accrued on the date of the suit,

2. The parties stand in the relationship of landlord and tenant. On 13-7-1972, the plaintiff brought the suit for eviction of the defendant under Section 13 (1) (h) of the Act i. e. on the ground of his personal necessity alleging that he requires the suit premises, which is a shop, reasonably and bona fide for his own use and occupation. On the date of the soft, the defendant was in arrears of rent, but the ground mentioned in Clause (a) thereof was not available to the plaintiff, inasmuch as he was not in arrears with the rent for a period of six months. The defendant filed his written statement contesting the plaintiffs claim and pleaded that the alleged necessity was not the bona fide requirement, but was just a pretence to secure his eviction, Bat before the suit could be fixed for evidence, the plaintiff on 2-4-1976 i.e. after about 4 years of the institution of the suit, made an application under Order 6 Rule 17 seeking to amend the plaint with a view to incorporate an additional ground under Section 13 (1) (a), alleging that the defendant, had neither paid nor tendered the amount of rent for more than 6 months. That application of his has been allowed by the learned trial Judge by the order in revision. At the hearing, it was urged that the learned trial Judge was bound to follow the decisions of Jagat Narayan J., in Rajeshwar Dayal v. Padam Kumar Kothari, supra, and Kedarnath v. Panadevi supra, holding that no such amendment can be allowed. After hearing the parties at length, I felt that these decisions require reconsideration and, therefore, the matter has been placed before a larger Beach.

3. The decisions of Jagat Narayan J. in Rajeshwar Dayal v. Padam Kumar Kothari (AIR 1970 Raj 77) (supra) and Kedarnath v. Panadevi (AIR 1973 Raj 24) (supra) proceed on the assumption that the existence of one or more of the grounds mentioned in Section 13(1) of the Act, constitutes a necessary part of the cause of action for eviction of a tenant from an accommodation and, therefore where such a ground comes into existence after the institution of a suit on one or more of the grounds mentioned in Section 13 (1) of the Act, the plaintiff cannot be permitted to amend the plaint to introduce such a ground.

4. The learned Judge was of the view that the Court has no power either under Section 153 or under Order 6, Rule 17 to allow an amendment of the plaint so as to include a cause of action which had not accrued on the date of the suit, In reaching that conclusion, the learned single Judge has relied upon the decisions of Privy Council in Mashwa Mya v. Maung Mo Hnaung (AIR ma PC 249) ; Doorga Prasad v. Secretary of State (AIR 1945 PC 62); and Kanda v. Wagha (AIR 1950 PC 68),

5. With due deference to the learned Judge, we are constrained to observe that his decision proceeds on a complete misreading of the decisions in Ma Shwe Mya v. Maung Mo Hnaung, supra, Doorga Prasad v. Secretary of State, supra, and Kanda v. Waghu, supra. He proceeds on a wrong premise in assuming that the incorporation of a new ground for eviction in a suit brought by the landlord under Section 13 (1) of the Act due to subsequent events, cannot be permitted under Order 6, Rule 17 of the Code, There is no warrant for this proposition.

6. It is true that in Firm Panjumal Daulatram v. Sakhi Gopal, Second Appeal No, 415 of 1971, one of us (Sen J.) while sitting in the Madhya Pradesb High Court had occasion to interpret Section 12 (1) of the Madhya Pradesh Accommodation Control Act, 1961, which reads :--

'12, Restriction of eviction of tenants, -- (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against the tenant for his eviction from any accommodation except en one or more of the following grounds only, namely,--'

In that case, it was observed:

'The true effect and meaning of the language of Section 12 (1) of the Act is that no suit for eviction of a tenant from an 'accommodation', as defined in Section 2 (a) of the Act, can be brought unless it is based on one or more of the grounds mentioned therein. The construction suggested on the opening words 'Notwithstanding anything to the contrary contained in any ether law or contract', and the word 'except' appearing therein, is the only construction possible. The Act, by the non obstante clause, gives to Section 12 (1) an overriding effect over all other laws including the Transfer of Property Act, There can also be no contracting out by the tenant of his statutory protection. The Act enjoins that any contract between the parties, if it is contrary to the provisions of the Act, will be inoperative, and the Court will mot enforce it. The words 'no suit shall be filed' mean, on the one hand, that the landlord is prohibited from filing a suit for eviction against a tenant unless it is based on one or more of the grounds mentioned in Section 12 (1), and on the other, if he has filed suit a suit, i.e., without its being based on any of the grounds specified therein, the Court shall not entertain such a suit and dismiss it as disclosing no cause of action. The existence of one or more of the grounds mentioned in Section 12 (1) of the Act, therefore, constitutes a necessary part of the cause of action in a suit for eviction of a tenant from an accommodation,'

7. These observations were, however, based on the language of Section 12 (1) of that Act.

8. The language of Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is entirely different. It reads as follows:--

'13. Eviction of tenant-- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree, or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied,--'

9. The opening words of Section 13 (1), 'Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order in favour of a landlord, whether in execution of a decree or otherwise', create a fetter on the powers of the Court. The broad policy and purposes as indicated in the preamble are to protect tenants against their landlords in respect of the rents, evictions etc. The Act by Section 13 (1) expressly forbids the Court from passing a decree or order of eviction on a ground which is de hors the Act, The entire scheme and structure of the Act leads to the irresistible conclusion that Section 13 (1) places a bar on the Court. The Court is not competent to pass a decree for possession either in invitum or with consent of the parties or on a ground which is de hors the Act, The existence of one or more of the grounds mentioned in Section 13 (1) is a sine qua non to the exercise of jurisdiction by the court. (See, Nagindas Ramdas v. Dalpatram Iccharam (AIR 1974 SC 471); Murlidhar v. State of U. P. (AIR 1974 SC 1924).

10. The decisions of Jagat Narayan J. in Rajeshwar Dayal v. Padam Kumar Kothari (AIR 1970 Raj 77) and Kedarnath v. Panadevi (AIR 1973 Raj 24) (supra) and that of the Madhya Pradesh High Court in Firm Panjumal's case (AIR 1977 NOC 107) (supra), proceed on certain observations of their Lordships in Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad (AIR 1963 SC 120) to the effect (at p. 125):---

'The right to possession is to be distinguished from the right to recover possession. The right to possession arises when the tenancy is determined. The right to recover possession follows the right to possession, and arises when the person in possession does not make over possession as he is bound to do under law, and there arises a necessity to recover possession through Court, The cause of action for going to Court to recover possession, arises on the refusal of the person in possession, with no right to possess, to deliver possession. In this contest, it is clear that the provisions of Section 12 deal with the stage of the recovery of possession and not with the stages prior to it and that they come into play only when the tenancy is determined and a right to possession has come in existence. Of course, if there was no contractual tenancy and a person is deemed to be a tenant only on account of a statute giving him right to remain in possession, the right to possession arises on the person in possession acting in a manner which, according to the statute, gives the landlord right to recover possession, and no question for the determination of the tenancy arises, as really speaking, there was no tenancy in the ordinary sense of that expression. It is for the sake of convenience that the right to possession, by virtue of the provisions of a statute, has been referred to as statutory tenancy,'

These general observations have been criticised by their Lordships of the Supreme Court in Raval and Co. v. K. G. Eamchandran (AIR 1974 SC 818) stating that they should not be held to apply to all Rent Acts irrespective of the schemes of these Acts. Their Lordships' view was that the Act lays down, the 'procedure' for obtaining the relief of ejectment. The grounds stated in Section 13 (1) of the Act are, therefore, nothing but conditions upon which a decree can be passed or eviction ordered. The existence of one or more of the grounds mentioned in Section 13 (1) of the Act, therefore, does not constitute a necessary part of the cause of action in a suit for eviction of a tenant from an accommodation. What constitutes the case of action is the termination of the tenancy by service of a notice under Section 106 of the Transfer of Property Act. The grounds that make it possible to get the relief of ejectment. No doubt, the plaintiff has to allege the existence of one or more of the grounds specified in Section 13 (1) and has the burden of proving that such grounds exist, but the existence of the grounds is not a part of the cause of action. If any of such grounds exists, the tenant is not entitled to any protection from eviction. The Court has, therefore, to see if any of the grounds exists, as in that event the suit would be maintainable. Thus, Section 13 (1) of the Act is nothing but a procedural restriction and does not create a substantive right.

11. In Akhil Ranjan Das Gupta v. B. N. Biswas (AIR 1950 Cal 472) in somewhat similar circumstances, during the pendency of a suit for eviction on the ground of personal necessity, the plaintiff wanted to incorporate by way of amendment an additional ground that the tenant was in arrears of rent for 3 months, Sen J., negatived the contention that the amendment could not be allowed as it changed the nature of the suit and had introduced a new cause of action and stated (at p. 473):--

'The general rule is that amendments should be generously allowed unless such amendments would cause prejudice to the defendant by reason of surprise or by reason of the fact that the amended claim had become barred by limitation or similar other reasons. I do not wish to lay down any general principle or state any exhaustive list of conditions under which an amendment may be allowed or disallowed. I would say that in the present case the amendment does not alter the plaintiff's case at all'.

'The plaintiff has sued in ejectment and the suit still remains a suit in ejectment. The cause of action has also not been altered. The plaintiff's cause of action in the original suit was the termination of the tenancy. The plaintiff is relying upon the same cause of action. He is only adding an additional ground in support of his case that the tenancy has ceased. In the original plaint his case was that the tenancy had been terminated by a notice to quit. In the present case by an amendment he wishes to add another ground upon which the tenancy has been terminated namely the ground of non-payment of rent for three consecutive months.'

In Zainab Bai v. Navayug Chitrapat Co, Ltd. (AIR 1969 Bom 194) Nain J., took the same view stating (at p, 197):--

'It is true that 'cause of action' means every material fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment. In a suit for eviction filed by a landlord against, a tenant the right to sue and to get judgment arises from the determination of the tenancy by efflux of time, expiration of notice to quit or otherwise as provided in Section 111 of the Transfer of Property Act. It is then that the landlord becomes entitled to evict or to recover possession from the tenant.'

'Section 12 of the Bombay Rent Act provides that no ejectment shall ordinarily be made if tenant pays or is ready and willing to pay standard rent and permitted increases. It provides a protection for tenant against eviction after determination of tenancy. It creates an impediment in the way of the landlord recovering possession',

'These conditions are termed 'as 'grounds of ejectment'. It is not necessary for a landlord to set out these grounds in the notice to quit as they are not a part of the cause of action of the landlord. The landlord sets out these grounds in the plaint, not because they constitute his cause of action, but in anticipation of the tenant claiming the protection provided in Section 12, to show that conditions have arisen which have taken away the protection of the tenant and removed the impediment in the way of the landlord recovering possession. In my opinion, grounds of ejectment are not a part of the cause of action in such suit.'

12. There was some doubt as to the correctness of this decision in view of the observations of their Lordships in Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad (AIR 1963 SC 120) (supra), but as we have already pointed out, the general observations in that case have been criticised by their Lordships in Raval & Co. v. K. G. Ramchandran (AIR 1974 SC 818) (supra).

13. In Tinkari Das v. Jammuna Bala Dasi (AIR 1973 Cal 448) Datta J. allowed a similar amendment permitting the landlord to take an additional ground for eviction taking into consideration the subsequent events even if there was a change in the ground of eviction for the purposes of shortening litigation and ensuring justice to all. The learned Judge has referred to several authorities on the point laying down that the Court is entitled to take notice of the subsequent events to shorten litigation, to preserve rights of both parties and to sub-serve the ends of justice.

14. In Jitendra Nath v. Dr. Kalyan Kr. Banerjee (AIR 1977 Cal 49) Janah J., speaking for the Division Bench, held that an application for amendment made by the landlord to introduce a new ground for eviction should be allowed, and observed (at p. 50):--

'The suit is one for ejectment of a tenant and the amendment, if allowed, will not change the nature and character of the suit, inasmuch as, it will nevertheless remain a suit for eviction of a tenant; secondly, the cause of action in the suit is not default, but it is the determination of the tenancy by a notice to quit. Default is only one of the grounds which entitles a Court to pass a decree for eviction against the tenant. Section 13 of the Act provides that unless one or more of the grounds specified in Sub-section (1) of that section is satisfied no Court shall pass a decree for eviction against a tenant. Default in payment of rent or reasonable requirement on the part of the landlord are merely two of such grounds which lift the bar put under Section 13 of the Act.'

'A similar point came up for decision in the case of Dwarka Prasad Mahawar v. Gopal Das Mahawar, (1976) 80 Cal WN 269. In that case also the suit was originally instituted on the ground of default in payment of rent. Subsequently the plaint was sought to be amended by introducing another ground, namely that the defendant had made certain unauthorised constructions in the premises. My learned brother R. Bhattacharya J. had occasion to consider several decisions of the Supreme Court and also a Full Bench decision of the Delhi High Court as well as the decision reported in (1974) 78 Cal WN 572 in connection with the points which arose for determination in that case. After a careful analysis of all the decisions cited before him his Lordship came to the conclusion that the prayer for amendment was rightly allowed by the trial court in that case. I respectfully agree with the view taken by his Lordship in the said case and the reasons given in the said judgment.'

15. This is the correct legal proposition.

16. In Qudrat Ullah v. Municipal Board, Bareilly (1974) 1 SCC 202: (AIR 1974 SC 396) Krishna Iyer J., speaking for their Lordships laid down, while interpreting Section 3 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947, and observed (at page 402 of AIR):--

'Section 3 is only a procedural restriction and does not create a substantive right. All that Section 3 therein laid down was that:

'No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds....................'

It is more a procedural disability that is cast, not a substantive cause of action that is created.'

Their Lordships then conclude stating;--

'...... a disability of the plaintiff to enforce his cause of action under the ordinary law may not necessarily be transmuted into a substantive right in the defendant.'

'It is appropriate for a Court to do justice between the parties to the litigation and in moulding the relief in the light of the subsequent developments to take note of legislative changes. A Court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again.'

17. In Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770: (AIR 1975 SC 1409), their Lordships not only allowed the landlord to amend his petition to take an additional ground for eviction in view of the subsequent events, but remitted the case for a decision afresh. That really clinches the whole matter.

18. In Shri Rattan Lal v. Shri Vardesh Chander, (1976) 2 SCC 103: (AIR 197.6 SC 588), Krishna Iyer J., while interpreting Section 14 (1) of the Delhi Rent Control Act, 1958 observed (at page 591 of AIR):--

'But, in the Delhi Rent Act, as in many other like statutes, what is intended to be done is not to supplant but to supplement, not to eliminate the statutory requirements of determination of tenancy but to superimpose a ban on eviction which otherwise may be available in conformity with the T. P. Act without fulfilment of additional grounds.

No order......for the recovery of possession of any premises shall be made......in favour of the landlord against a tenant... ......is a blanket ban in Section 14 (1) of the Rent Act. It is followed by enumeration of specific grounds proof of which may authorise the Controller to make an order for the recovery of possession of the premises. It follows that before a landlord can institute proceedings for recovery of possession, he has to make out high right (a) under the T. P. Act, and (b) under the Rent Act.'

19. It would thus appear that the cause of action for a suit for eviction is based on the fact that there is a valid determination of the lease under Section 106 of the Transfer of Property Act The existence of one or more of the grounds under Section 13 (1) of the Act is but a condition on which the fetters placed against the execution of a decree for eviction can be removed.

20. In Smt. Abnash Kaur v. Dr. Avinash Nayyar (AIR 1975 Delhi 46) (FB) Deshpande J., delivering the judgment of the Full Bench, stated:--

'The cause of action in a suit for the eviction of a tenant under the Transfer of Property Act would be the existence of the relationship of a landlord and a tenant which has been brought to an end by the termination, of tenancy by a notice to quit, by efflux of time, by forfeiture, etc.'

21. The expression 'cause of action' has been tersely defined in Mulla's Code of Civil Procedure thus:--

' 'Cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court.'

22. The grounds of eviction do not constitute a necessary part of cause of action for eviction of a tenant from an accommodation because even if untraversed, the plaintiff is still not entitled to succeed unless one or more of the grounds mentioned in Section 13 (1) of the Act are proved to exist. 'Even if the defendant in such suit does not appear and remains ex parte, the plaintiff is still not entitled to a decree for eviction unless the Court is satisfied about the existence of one more of the grounds set forth in Section 13 (1): Rajendra Kumar v. Jamna Das (1975 Raj LW 64). The Court cannot also execute a decree for eviction of the tenant from an accommodation unless it is satisfied about the existence of such grounds. Thus Section 13 (1) of the Act create a fetter on the power of the Court to pass or execute a decree for eviction.

23. Every material fact does not constitute a part of the cause of action. In A. K. Gupta and Sons v. Damodar Valley Corporation (AIR 1967 SC 96), Sarkar J., speaking for the majority observed (at p. 98) :--

'The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill, (1873) B CP 107 (116), in a different context for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn, Ltd., (1962) 2 All ER 24, and it seems to be the only possible view to take. Any other view, would make the rule futile. The words ''new case' have been understood to mean 'new set of ideas': Dornan v. J.W, Ellis & Co. Ltd. (1962) 1 All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.'

24. His Lordship then continued,--

'Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a new case? We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purposes. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action that it is, the same contract. It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute.'

25. The dictum of Swift J., in Eshelby v. Federated European Bank Ltd. ( (1932) 1 KB 254) on which Jagat Narayan J., relies, lays down that a plaintiff cannot except by consent, amend and set up a cause of action which has accrued since the issue of the writ. In the Court of Appeal, the majority of the learned Lord Justices expressed no opinion on the question. That apart, the strict rule enunciated by Swift J., is not strictly adhered to. There is no inflexible rule that a cause of action arising subsequent to the filing of a suit cannot be added by way of an amendment. Introduction of a new case is no ground for refusal so long as the defendant has an opportunity of meeting the new case by amendment of written statement and by leading evidence in support of that defence.

26. In Smt. Abnash Kaur v. Dr. Avinash Nayyar (AIR 1976 Delhi 46) (supra), the Full Bench of the Delhi High Court has accordingly held that the Rent Controller had the power and jurisdiction to allow an amendment to add a new ground of eviction which had arisen subsequent to the filing of the eviction petition and was different from the ground on which eviction was sought initially.

27. With respect, we are inclined to, think that Jagat Narayan J., was wrong in relying upon Ma Shwe Mya v. Mung Mo Hnaung (AIR 1922 PC 249) (supra), Doorga Prasad v. The Secretary of State, (AIR 1945 PC 62) (supra) and Kanda v. Waghu (AIR 1950 PC 68) (supra). These decisions are an authority for the proposition that, in spite of the very wide powers of amendment under Order 6, Rule 17, the Court cannot by way of amendment, substitute one distinct cause of action for another, or change the subject-matter of the suit. In Ma Shwe's case (supra), their Lordships of the Privy Council observed:--

'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, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.'

We fail to appreciate the relevance of this decision to the point in controversy.

28. The effect of allowing the amendment will not alter the nature and character of the suit, nor will it cause any prejudice to the defendant. It still remains a suit based on the original cause of action i.e., on determination of the jural relationship of the landlord and the tenant. There is no question of taking away from the defendant any legal right which has accrued to him by lapse of time, nor does the amendment introduce a totally different, new and inconsistent case.

29. The decision of their Lordships in Kanda v. Waghu (AIR 1950 PC 68) (supra) rests on the dictum of Lord Westbury in Eschenchunder Singh v. Shamachurn Bhutto, ((1866-67) 11 Moo Ind App 7 at p. 20) (PC) that, the determination in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. There, the amendment involved the setting up of a new case. The plaintiffs founded their claim on the ground that the land was ancestral, and it was on that ground that they challenged as reversioner the right of the widow to make the gift. Not once during the proceedings in the trial court did they suggest that even if the land was found to be non-ancestral, the widow will still be incompetent to dispose of it. They failed to make out that case at all stages till the High Court. In the Privy Council, an amendment was sought to introduce a totally different, new and inconsistent case viz., that by custom, the widow could not make a gift in favour of the daughter's son. Their Lordships declined to grant leave to the plaintiff to amend the plaint as the powers of amendment though very wide, had to be exercised in accordance with the legal principles. This again was a case of introducing a totally different, new and inconsistent case.

30. In Doorga Prasad v. The Secretary of State (AIR 1945 PC 62) (supra), their Lordships held that the relief claimed in the suit must be confined to the matters existing at the date when the suit was instituted. Originally, the decree in a suit accorded with the rights of the parties as they stand at the time of its institution, but where it is shown that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court to take notice of the events which have happened since the institution of the suit and mould its decree according to the circumstances as they stand at the time the decree is made: Lachmeshwar v. Kesheswarlal (AIR 1941 FC 5).

31. The present trend of the Supreme Court decisions referred to above does lend support to the view that Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is only a procedural restriction and does not create a substantive right. The landlord sets out the 'grounds of ejectment' in the plaint, not because they constitute his cause of action, but in anticipation of the tenant claiming the protection [provided in Section 13 (1) of the Act, to show that conditions have arisen which have taken away the protection of the tenant and removed the impediment in the way of the landlord recovering possession. In our opinion, the grounds mentioned in Section 13 (1) of the Act, therefore, do not constitute a necessary part of the cause of action for eviction of the tenant from an accommodation,

32. The decisions of Jagat Narayan J., in Rajeshwar Dayal v. Padam Kumar Kothari (AIR 1970 Raj 77) (supra) and Kedarnath v. Panadevi (AIR 1978 Raj 24) (supra), must be overruled and we accordingly overrule them, as they do not lay down good law.

33. The result, therefore, is that the revision is dismissed. There shall be no order as to costs.


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