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Nand Kishore Vs. Dr. Naraindas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 46 of 1973
Judge
Reported inAIR1977Raj255; 1977()WLN441
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 6, Rule 17
AppellantNand Kishore
RespondentDr. Naraindas and anr.
Advocates: S.K. Keshote, Adv.
DispositionPetition dismissed
Cases ReferredRajeshwar Dayal v. Padam Ku
Excerpt:
.....and that the opposite party would not be deprived of any defence, it would be open to it if a fresh suit on a new cause of action were to be brought to the court.;the defendant petitioner by filing his written statement can raise ail defences which he could have raised in a new suit was brought on a subsequent cause of action and, therefore it is difficult for me to say that the petitioner has in any manner been prejudiced.;(b) civil procedure code - order 6 rule 17 and rajasthan premises (control of rent & eviction) act 1950--section 13a--amendment likely to prejudice application under section 13a trial court directed not to allow petitioner to be derived of his right.;revision decided accordingly - - it so happened that during the pendency of suit his son failed in the..........permitted under order 6, rule 17 for a fresh cause of action for which the plaintiff can bring a fresh suit. he placed reliance on kedar nath v. smt. pana devi, air 1973 raj 24. in that case the suit for ejectment was filed by the landlord but during the pendency of the suit the premises were alienated by the landlord to the transferee who came out with an application under order 22, rule 10 of the civil p. c. for leave to prosecute the suit as a plaintiff and also prayed that a fresh cause of action may be allowed to be added in the plaint by the amendment as he needed the premises for his personal necessity. the learned judge held that the plaintiff landlord cannot be allowed to amend the plaint by adding a ground that he bona fide required the premises for his own use as it would.....
Judgment:
ORDER

V.P. Tyagi, C.J.

1. This revision is directed against the order of the learned Munsiff (East) Jaipur City dated 6th Oct., 1972 whereby he permitted an amendment to be incorporated in the plaint.

2. A suit was filed by the respondent for the ejectment and arrears of rent against the petitioner. The petitioner filed an application under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for the payment of the arrears of rent. It so happened that during the pendency of suit his son failed in the examination and, therefore, a necessity was felt by the plaintiff that his son be rehabilitated in some business and for that purpose an application was filed that the shop in dispute was required for his personal necessity and it was in these circumstances that he applied for the permission to amend his plaint. This prayer of the plaintiff was contested by the defendant on the ground that the fresh cause of action cannot be made the basis for amendment and therefore the prayer sought cannot be added in pending suit. The learned Munsiff vide his order dated 6th Oct., 1972 relying on the authority of this Court reported in Premraj v. Smt. Gavri Bai, 1969 Raj LW 389 exercised its inherent power and allowed the incorporation of the amendment sought by the plaintiff. It is against this order that this revision petition has been filed by the defendant petitioner.

3. The main ground of attack by the learned counsel for the petitioner is that no amendment can be permitted under Order 6, Rule 17 for a fresh cause of action for which the plaintiff can bring a fresh suit. He placed reliance on Kedar Nath v. Smt. Pana Devi, AIR 1973 Raj 24. In that case the suit for ejectment was filed by the landlord but during the pendency of the suit the premises were alienated by the Landlord to the transferee who came out with an application under Order 22, Rule 10 of the Civil P. C. for leave to prosecute the suit as a plaintiff and also prayed that a fresh cause of action may be allowed to be added in the plaint by the amendment as he needed the premises for his personal necessity. The learned Judge held that the plaintiff landlord cannot be allowed to amend the plaint by adding a ground that he bona fide required the premises for his own use as it would require fresh evidence and allowing the amendment constitutes a material irregularity, justifying interference in revision. While arriving at its conclusion, another authority of this Court in Rajeshwar Dayal v. Padam Ku-mar Kothari, 1969 Raj LW 546: (AIR 1970 Raj 77) was considered by the learned Judge wherein it has been held that the amendment of the plaint on a subsequent cause of action can be allowed under the inherent powers of the court provided (i) there was no change of jurisdiction, (ii) the application was not greatly belated; (iii) no fresh enquiry on facts was necessary, and (iv) the opposite party was not deprived of any defence which would be open to it if a fresh suit on the new cause of action were to be brought,

4. I have carefully gone through the authorities cited before me. In Rajesh-war Dayal's case (AIR 1970 Raj 77) the same learned Judge who decided the Kedarnath's case (AIR 1973 Raj 24) has held that the amendment can be permitted under the inherent powers of the court so as to include a cause of action which had not accrued on the date of the suit provided the four conditions mentioned above were satisfied. In the present suit the amendment was allowed by the lower court on the ground that no proceeding after filing of application under Section 13 (4) of the Rajasthan Premises (Control of Rent & Eviction) Act had taken place and that the opposite party would not be deprived of any defence. It would be open to it if a fresh suit on a new cause of action were to be brought to the court.

5. In the present case the amendment was allowed by the court below while exercising its inherent jurisdiction and, therefore, the discretion exercised by the court can be interfered with only if some prejudice is caused to the petitioner defendant. The defendant petitioner by filing his written statement can raise all defences which he could have raised if a new suit was brought on a subsequent cause of action and, therefore it is difficult for me to say that the petitioner has in any manner been prejudiced.

6. Learned counsel has brought to my notice that he has filed an application under Section 13-A which has been newly added to the Act and, therefore, he is likely to be prejudiced if the proceedings are to start after the amendment is allowed. The prayer made by the petitioner in his application under Section 13-A shall be scrutinised by the court below and if any right to the petitioner accrues on account of the amendment in the law then the trial court will first look into the matter and will not allow the petitioner to be deprived of his right simply because the matter is pending in the court for such a long time. The application under Section 13-A may also be sent to the trial court for disposal.

7. With these remarks the revision petition fails and is hereby dismissed.


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