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Ramavtar Gupta Vs. Manak Raj and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 279 of 1977
Judge
Reported inAIR1978Raj186; 1978(11)WLN173
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13
AppellantRamavtar Gupta
RespondentManak Raj and anr.
Appellant Advocate N.M. Kasliwal and; J.S. Rastogi, Advs.
Respondent Advocate G.C. Loonia, Adv. (for No. 1) and; P.N. Sharma, Adv. (for No. 2)
DispositionRevision allowed
Cases Referred and Manohar Lal v. National Building Material Supply
Excerpt:
.....one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit. jadav chand (1977 raj lw 265). 29. the basic question for consideration in this revision petition is whether by refusing to amend the plaint the learned lower court has acted illegally and with material irregularity in exercise of its jurisdiction which has resulted in failure of justice. this refusal to allow amendment has resulted in failure of justice......to be amended; otherwise if the amendment were refused the plaintiff would have to bring another suit.9. reliance was placed on manohar lal v. national building material supply, gurgaon, air 1969 sc 1267, wherein it was held that rules of procedure are intended to be a handmaid to the administration of justice. a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs.10. reliance was placed on shikharchand v. d. j. p. karini sabha, air 1974 sc 1178, wherein it.....
Judgment:
ORDER

P.D. Kudal, J.

1. This revision petition under Section 115 of the Civil P. C. is directed against the order of the learned Additional Civil Judge, Jaipur City, Jaipur dated 2nd July, 1977, whereby the application dated 2nd March, 1977 seeking amendment of the plaint was rejected. It was alleged in the plaint that the suit premises were constructed in the month of April, 1971 and that in view of the then existing law the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) did not apply to the premises which were constructed after 1st June, 1951 for a period of seven years from the date of completion. This provision contained in Section 2(e) of the Act was deleted by the Ordinance dated 29th Sept. 1975. This ordinance was thereafter replaced by an Act. The contention of the plaintiff is that in view of this legislative change it has become necessary to amend the plaint to bring it in conformity to the requirements of the provision of Section 13 of the Act. The learned trial Court held that if the proposed amendment is allowed then the nature and character of the suit would be changed and as such, rejected the application for amendment on 2nd July, 1977. Feeling aggrieved, the plaintiff has filed the present revision petition.

2. On behalf of the plaintiff-petitioner, it was contended that as the plaint was filed on 24th July, 1975, it was in conformity to the requirements of the Transfer of Property Act only, and as the provisions of the Act did not apply, there was no occasion for making a detailed reference to the grounds on which the ejectment could be sought. It was also contended that however a passing reference was made in para No. 3 of the plaint that as the premises are required by the plaintiff, the defendants are being called upon to vacate the same. It was further contended that the learned lower Court has acted illegally and with material irregularity in holding that the nature and character of the suit would be changed by allowing the amendment sought for. It was also contended that the cause of action is determined by the service of notice under Section 106 of the T. P. Act, and that the grounds of ejectment as contemplated under Section 13 of the Act did not constitute the cause of action and, therefore, it is neither a case of change of cause of action, nor a case wherein it could be said that the nature and character of the suit would be changed. It was also contended that the intention of the Legislature is to avoid multiplicity of proceedings, and by refusing the application for amendment, the learned lower Court has ignored the basic principle that the multiplicity of proceedings should be avoided. It was also contended that the amendment has been sought at an early stage as even the issues have not yet been framed, and that the defendants are not likely to be put to any inconvenience nor prejudice is likely to be caused to them if the amendment sought for is allowed.

3. On behalf of the defendant-respondents, it was contended that by allowing the application for amendment the entire nature and character of the suit would be changed. It was also contended that in the original plaint there are absolutely no allegations which could justify the ejectment of the tenant under Section 13 of the Act. It was also contended that the change in law by deleting Sub-section (e) of Section 2 of the Act had come into force as early as on 29th Sept. 1975, yet the application for amendment was moved at on extremely belated stage on 2nd March, 1977. It was also contended that there are two defendants and each one of them is paying rent separately, and if the present amendment is allowed, certain rights which have accrued to each one of them would be taken away, and the defence against ejectment is likely to be strongly prejudiced.

4. On behalf of the defendant-respondent No. 2, it was contended that a material change in the character of the suit is sought to be introduced by this amendment inasmuch as that while in the original plaint no allegations of damages to the property by the defendant No. 2 were enumerated, but in the amended plaint it is being so alleged against the defendant No. 2 also. It was also contended that in the original plaint, the defendant No. 2 has not been shown as a tenant, but now in the proposed amendment the relationship of tenancy is sought to be created between the plaintiff and the defendant No. 2 also. It was also contended that the proposed amendment would change the cause of action which would materially change the character and nature of the suit. It was also contended on behalf of the defendant No. 2 that the plea of change of cause of action could not be taken by him if the amendment is allowed, though he can raise such pleas if fresh suit is filed. It was also contended that the amendment sought for is not bona fide, and that the plaintiff has been acting in a mala fide manner. Lastly, it was contended on behalf of the defendant No. 2 that there is absolutely no case justifying an interference on the revisional side.

5. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused.

6. The learned counsel for the plaintiff-petitioner has placed reliance on Prem Lal v. Jadav Chand, 1977 Raj LW 265, wherein it was held that Section 13 (1) of the Act is nothing but a procedural restriction and does not create a substantive right. 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.

7. Reliance was also placed on Akhil Ranjan v. B. N. Biswas, AIR 1950 Cal 472, wherein it was held that the general rule is that amendment 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. Similar view was taken in Jitendra Nath v. K. K. Banerjee, AIR 1977 Cal 49.

8. Reliance was placed on Nichhalbhai v. Jaswantlal, AIR 1966 SC 997, wherein it was held that as the object of the rule for allowing amendments to the plaint was to avoid multiplicity of suits, this was a proper case in which the Court should allow the plaint to be amended; otherwise if the amendment were refused the plaintiff would have to bring another suit.

9. Reliance was placed on Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267, wherein it was held that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs.

10. Reliance was placed on Shikharchand v. D. J. P. Karini Sabha, AIR 1974 SC 1178, wherein it was held that ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten litigation or (3) to do complete justice between the parties.

11. Reliance was also placed on Badri Prasad v. Ram Prasad, AIR 1963 Rai 106, wherein it was held that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases. Any kind of error or mistake which, if not fraudulent or intended to overreach the Court ought to be corrected if it can be done without injustice to the other party.

12. Reliance was also placed on Roop Narain v. Prem Chand, 1973 Raj LW 594 : (AIR 1974 Rai 29), wherein it was held that where amendment of plaint was disallowed without keeping in mind real established principles, the order was open to be corrected on the revisional side.

13. On behalf of the defendant-respondent No. 1, reliance was placed on Harish Chandra v. Triloki Singh, AIR 1957 SC 444, wherein it was held that the amendment was rightly refused when no attempt was made to explain why it was sought after such long delay and why the new allegations were not made in the original petition.

14. In Gopalakrishnamurthi v. Shreedhara Rao, AIR 1950 Mad 32, it was held that where certain facts are alleged which facts were available to the plaintiff and which the plaintiff has not chosen to mention in the original plaint it was not open to Court to permit such an amendment as it would permit a new case to be made on facts which were available but were not pleaded. Similar view was taken in Bhubaneshwar v. Janak, AIR 1976 Orissa 216.

15. Reliance was placed on Arun Kumar Chatterjee v. Karuna Rakshit, 1975 Ren CJ 126 (Cal), wherein it was held that considering the facts of the case the learned Munsiff was wrong to think that by complying with Court's Order under Section 17 (2) of the West Bengal Tenancy Act, 1956, the defendant (tenant) did not acquire a right against eviction as envisaged in Section 17 (4) and the amendment would not jeopardise that right. If the amendment be allowed the suit would be completely changed. Instead of the suit being one on the ground of default it would be a suit on the ground of subletting, breach of contract and nuisance. All these grounds if they existed were known to the opposite party (the landlord), and there was absolutely no justification why these grounds were not mentioned in the plaint.

16. Reliance was placed on R.S. Mani v. A. Palanimuthu, AIR 1967 Mad 16 and Murlidhar v. Krishi Upaj Mandi Samiti, 1978 Raj LW 34 : (AIR 1978 Raj 48), wherein it was held that where the trial Court committed no illegality or material irregularity in exercise of its discretion resulting in failure of justice no interference is called for on the revisional side. It was further held that the High Court shall not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity.

17. On behalf of the defendant-respondent No. 2, reliance was placed on Gauri v. Brijkanwar Devi, 1974 Raj LW 1, wherein it was held that the cause of action in a suit for eviction against a tenant has to be based not only on the general law, namely, the Transfer of Property Act but has also to be founded on the relevant provisions of the rent control legislation. If the rent control legislation were not in force, then there could be no manner of doubt that the heirs of a deceased tenant could have been sued on the death of the tenant.

18. Reliance was placed on Rajdev Singh v. Royal Studios, 1971 Ren CR 818 : (AIR 1972 Delhi 150), wherein it was held that each one of the grounds under Section 14 (1) constitutes separate cause of action. It is not necessary that landlord must plead all grounds available to him in the same eviction petition on the date of filing the petition.

19. Reliance was placed on Phool Rani v. Naubat Rai, AIR 1973 SC 2110, wherein it was held that the legal representatives of a landlord (since deceased) have no right to continue the proceedings as initiated by the landlord for ejectment of the tenant under Section 14 (1) (e) of Delhi Rent Control Act because the bona fide requirement of the premises for the residence of himself (landlord) and his family members (together) is his personal requirement. Such a personal cause of action must perish with him when the application for ejectment has not been decided on merits and further, when the continuance of the proceeding requires determination of wholly different and distinct issues.

20. Reliance was also placed on S. G. Pasu and Co. v. Gulzarilal, AIR 1958 Madh Pra 409, wherein it was held that 'cause of action' means everything which if not proved, gives the defendant a right to judgment; every fact which is material to be proved to entitle the plaintiff to succeed. It is only material facts that constitute the cause of action which must be proved by the plaintiff before he can obtain a decree. Facts which plaintiff may allege incidentally and facts which may be brought in evidence res gestae would not necessarily constitute a part of the cause of action.

21. Reliance was placed on Puran Mal v. Onkar Nath, AIR 1959 Pat 128, wherein it was held that cause of action is not only the infringement of the right of a particular moment. The expression 'cause of action' and 'part of the cause of action' must be taken as meaning respectively, the material facts and any material fact in the case for the plaintiff.

22. Reliance was placed on Kesho Ram v. Dr. P. C. Tandon, AIR 1952 Punj 221, wherein it was held that in 1947 a suit for ejectment of the defendant was filed, on the ground that he had sublet the premises to another person, where in appeal the suit was remanded, the plaintiff sought to amend the plaint by adding two more 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. It was 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 had a grievance against the defendant for giving him other causes he must pursue his remedy by another suit.

23. Reliance was placed on Md. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, wherein it was held that the cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.

24. Reference was also made to Kanda v. Waghu, AIR 1950 PC 68, wherein it was held that the powers of amendment must be exercised in accordance with legal principles. An amendment which involves the setting up of a new case and alters the real matter in controversy between the parties cannot be allowed.

25. In Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249, it was held that all rules of Courts 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 been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit.

26. In Tejsingh v. Ratansingh, 1950 Raj LW 103, it was held that the amendment raised a new and wholly different cause of action and as such could not be allowed.

27. Reliance was placed on Shaik Masthan Sahib v. Balarami Reddi, AIR 1953 Mad 958, wherein it was held that points raised in amendment sought to be introduced already covered by original written statement -- proposed amendment in direct negation of admission contained in written statement -- amendment cannot be allowed.

28. It was further contended on behalf of the plaintiff-petitioner that Rajdev Singh v. Royal Studios, 1971 Ren CR 818: (AIR 1972 Delhi 150) has been overruled in Abnash Kaur v. Avinash Nayyar, AIR 1975 Delhi 46 (FB), and that this ruling has been considered by the Division Bench decision of this Court in Prem Lal v. Jadav Chand (1977 Raj LW 265).

29. The basic question for consideration in this revision petition is whether by refusing to amend the plaint the learned lower Court has acted illegally and with material irregularity in exercise of its jurisdiction which has resulted in failure of justice. The learned counsel for the plaintiff-petitioner has urged that in view of the decision of this Court in Prem Lal v. Jadav Chand, cause of action shall have to be determined in accordance with the terms of the notice under Section 106 of the Transfer of Property Act. On the other hand, the learned counsel for the respondents have strenuously argued that apart from the cause of action which accrued by service of notice under Section 106 of the T. P. Act, all the grounds of ejectment which have been enumerated in the Act, they also constitute causes of action and as, in the plaint, no ground of ejectment has been mentioned as enumerated in Section 13 of the Act, the petition for amendment was rightly rejected by the learned trial Court and it does not call for any interference on the revisional side.

30. The power of allowing amendment under Order 6, Rule 17, C. P. C. is intended to shorten litigation and to avoid multiplicity of proceedings. The rules of procedure are intended to be a handmaid of administration of Justice. A party should not be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The powers of allowing amendment of the pleadings have to be exercised liberally unless such a permission causes prejudice to the other side or takes away any vested right which has accrued to the other side by lapse of time. In the instant case, only written statement has been filed. Even issues have not been framed. This is true that the plaintiff did not enumerate in the plaint any of the grounds which could bring the case within the ambit of Section 13 of the Act. It was in para 3 of the plaint that a passing reference has been made that the premises were required for the use of the plaintiff, but that was not enough. As Section 2 (e) of the Act was deleted by the Ordinance issued on 29th Sept. 1975, there was a change in law. This change in law necessitated an amendment in the plaint. The question is whether the present amendment, if allowed, would change the cause of action and the nature and character of the suit. The Division Bench of this Court in the case of Prem Lal v. Jadav Chand (1977 Raj LW 265), has held that the grounds of ejectment enumerated in Section 13 of the Act did not substantially constitute the cause of action and the cause of action is determined by the notice under Section 106 of the T. P. Act. In Nichhalbhai v. Jaswantlal (AIR 1966 SC 997) and Manohar Lal v. National Building Material Supply, Gurgaon (AIR 1969 SC 1267), it was held that the powers of amendment should be liberally exercised and they are not intended to teach discipline to the parties and the parties should not be penalised for negligence, mistake or inadvertence unless as a result of these omissions a vested right has accrued to the other party. As the parties have not entered the witness-box, it cannot be said that if the amendment is allowed it would, in any way, cause prejudice to the defendant. On the other hand, if the amendment is refused, it would definitely lead to multiplicity of proceedings.

31. For the reasons stated above, I have no hesitation in holding that the learned trial Court has acted illegally and with material irregularity in refusing to allow the application for amendment. This refusal to allow amendment has resulted in failure of justice. In the result, the revision petition is hereby allowed. The order of the learned trial Court dated 2nd July, 1977, is hereby set aside. The amendment application dated 2nd March, 1977, is hereby allowed provided the plaintiff-petitioner pays Rs. 100 to each of the defendants-respondents as costs.

32. Looking to the facts and circumstances of the case, the costs of the revision petition would be easy.


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