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Mohammed Ishaq Vs. Smt. Lachhi - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 50 of 1978
Judge
Reported in1979WLN(UC)27
AppellantMohammed Ishaq
RespondentSmt. Lachhi
DispositionPetition allowed
Cases ReferredIn Bhura v. Bahadursirgh
Excerpt:
.....1950 section 13(1)(f)--defendant denying title of landlord plaintiff requesting for amendment of plaint--munsif disallowing amendment held disallowing amendment of plaint amounts to failure to exercise jurisdiction--munsif committed an illegality and material irregularity;a revision petition under section 115 is maintainable in a case where the sub ordinate court has disallowed the amendment by ignoring the principles which govern the exercise of the said power to allow an amendment.;in disallowing the amendment of the plaint on the view that any statement contained in the written statement could not be made the basis for seeking relief in the suit itself and that it would only be made a ground for obtaining her in the fresh suit that than may be filed by the petitioner, the munsit did..........filed by the petitioner in case no. c.o 102/77 was dismissed by the munsif city, jodhpur. the suit aforesaid has been filed by the petitioner for the eviction of the respondent on the ground that the respondent had committed default in the payment of rent in her written statement filed in the said suit, the respondent has denied that she is a tenant of the petitioner and has stated that the premises in question were taken on rent by her from shri noor mohammed after the 61ing of the aforesaid written statement, the petitioner moved an application for amendment of the plaint so as to add a ground that respondent, having denied that relationship of the landlord and tenant, cannot take the benefit o' the provisions of the rajasthan premises (eviction & control of rent) act, 1950,.....
Judgment:

S.C. Agrawal, J.

1. This revision petition has been filed under Section 115 of the Code of Civil Procedure against the order dated 14th December, 1977 passed by the Munsif City, Jodhpur whereby the application for amendment of the plaint filed by the petitioner in case No. C.O 102/77 was dismissed by the Munsif City, Jodhpur. The suit aforesaid has been filed by the petitioner for the eviction of the respondent on the ground that the respondent had committed default in the payment of rent In her written statement filed in the said suit, the respondent has denied that she is a tenant of the petitioner and has stated that the premises in question were taken on rent by her from Shri Noor Mohammed After the 61ing of the aforesaid written statement, the petitioner moved an application for amendment of the plaint so as to add a ground that respondent, having denied that relationship of the landlord and tenant, cannot take the benefit o' the provisions of the Rajasthan Premises (Eviction & Control of Rent) Act, 1950, (hereinafter referred to as the 'Act'. It may be observed that Section 13(1)(f) of the Act provides that the bar against the passing of a decree for eviction of a tenant will not apply in a case where the tenant has renounced his character as such or deried the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant. The Munsif City, by his order dated 14th December 1977 dismissed the application filed by the petitioner for amendment of the plaint on the view that no purpose would be served by allowing the amendment sought by the petitioner in the plaint in as much as the denial of title of the petitioner by the respondent in her written statement could not afford a ground for obtaining relief in the present suit and that the basis of the aforesaid denial, the petitioner can bring a fresh suit for the eviction of the respondent. Aggrieved by the aforesaid order passed by the Munsif City, Jodhpur, the petitioner has filed this revision petition

2. Shri D. K. Parihar, the learned Counsel for the petitioner, has submitted that in passing the order dated 14th December, 1977, the Munsif City has committed an error in proceeding on the basis that the denial of the title of the petitioner by the respondent in her written statement cannot afford a ground for obtaining relief in the present suit and that the only course open to 'he petitioner is to file a fresh suit on that ground The learned Counsel for the petitioner, in this connection, has placed reliance on the decisions of this Court in Bhura v. Bahadur Singh 1976 RLW 212 and Premlal v. Jadauchad 1977 RLW 265.

3. Shri R.R. Ghacha, the learned Counsel for the respondent, has raised a preliminary objection to the maintainability of the revision petition and has submitted that the Munsif had jurisdiction either to allow the amendment in the plaint or to refuse the said amendment and that merely because the Munsif had refused to allow the amendment cannot afford a ground for interfering in revision under Section 115 of the Code of Civil Procedure. The learned Counsel has submitted that even if the Munsif had committed an error of law in refusing to allow the amendment of the plaint, such an error could not be regarded as an error falling within the ambit of Clause (c) of Sub-section (1) of Section 115 of the Code of Civil Procedure as amended by Act No. 104 of 1976. In support of the aforesaid submission, the learned Counsel for the respondent has placed reliance on the decision of this Court in Harak Chand v. State of Rajasthan 1969 WLN 458. Relying on the proviso which has been inserted in Sub-Section(I) of Section 115 CPC by Act No. 104 of 1976 the learned Counsel for the respondent has submitted that the impugned order passed by the Munsif in the present case does not cause irreparable injury to the petitioner and therefore this Court is not competent -o vary or reverse the order pissed by the Munsif, rejecting the amendment application of the petitioner. On the merits, the submission of the learned Counsel for the respondent is that an amendment in the plaint was not necessary and that even without such an amendment, it would be open to the petitioner to urge in the present suit that the respondent is liable to be evicted in view of Section 13(1)(f) of the Act.

4. As regards the preliminary objection with regard to the maintainability of the revision petition raised by the learned Counsel for the respondent, it may be noticed that in Harak Chand v. State of Rajasthan 1969 WLN 458, a full bench of this Court, while considering the provisions of Clause (c) in Section 115 of the Code of Civil Procedure, has laid down that Clause (c) is applicable only if the Subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity and that illegality or material irregularity must ha/a occurred in the manner in which the jurisdiction of the Sub- ordinate Court is exercised, i.e. in the manner in which that case is heard or decided. The aforesaid decision of the full Bench of this Court in Harak Coand v. State of Rajasthan 1969 WLN 458 was considered by a learned Single Judge of this Court (Lodha, J.) in Roop Narain v. Prem Chand T. Nathani 1973 RLW 594 arising out of an order disallowing he plaintiff's application for amendment of the plaint and it has been observed.

The trial court has not addressed itself to the requirements of Order VI Rule 17 CPC which enjoins upon the Court to allow all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties.... In disallowing the plaintiff's prayer, the court below has ignored the well established principles to be kept in mind in the matter of allowing amendments & its finding cannot be said to be a judicial one. In this view of the matter, a case for interference has been made out under Section 115 of the Code of Civil Procedure.

6. In view of the aforesaid decision it must be held that a revision petition under Section 115 is maintainable in a case where the subordinate court has disallowed the amendment by ignoring the principles which govern the exercise of the said power to allow an amendment and it will have to be examined as whether the Munsif, in disallowing the amendment in the present case has kept in mind the aforesaid principles.

7. The other submission urged by the learned Counsel for the respondent based on proviso (b) to Section 115(1) of the Code of Civil Procedure cannot also be accepted in as much as a result of the order passed by the Munsif in the present case the petitioner will be debarred from submitting in the present suit that the respondent is liable to be evicted in view of Section 13(1)(f) of the Act in as much she has denied the title of the petitioner. The petitioner will thus suffer irreparable injury in as much he will have to file-a fresh suit to take the said ground based on the provisions of Section 13 (I) (f) of the Act and this will involve multiplicity of proceedings.

8. In my view, therefore, the preliminary objection with regard to the maintainability of the revision petition urged by the learned Counsel for the respondent cannot be sustained.

9. As to the merits I am of the opinion that in disallowing the amendment of the plaint on the view that any statement contained in the written statement could not be made the basis for seeking relief in the suit itself & that it would only be made a ground for obtaining relief in the fresh suit that may be filed by the petitioner, the Munsif did not address himself to the requirements of Order VI Rule 17 CPC which enjoins upon the court to allow all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties & has thus failed to exercise jurisdiction vested in him by law and has also committed illegality and material irregularity in the exercise of his jurisdiction.

10. In Premlal v. Jadavchand 1977 RLW 265 Division Bench of this Court has upheld an order allowing an amendment of the plaint to introduce a new ground of eviction based on Section 13(1)(a) of the Act which had arisen subsequent to the filing of the suit for eviction and which was different from the ground on which the eviction was sought initially. In the said case, the court has expressed the view that grounds in Section 13(1) of the Act are, nothing but conditions upon which a decree can be passed or eviction ordered and that the existence of one or more of the grounds mentioned in Section 13(1) of the Act, does not constitute a necessary part of the cause of action in a suit for eviction of a tenant from an accommodation. In the aforesaid decision this Court has held that Section 13(1) of the Act is nothing but a procedural restriction and does not create a substantive right. In the said Case, this Court was dealing with a case in which the Subordinate Court had allowed an application for amendment of the plaint incorporating the additional ground under Section 13(1)(a) alleging that the defendants had neither paid. nor tendered the amount of rent for more than 6 months although the said ground had arisen after the institution of the suit. This Court affirmed the order allowing the amendment and dismissed the revision petition The present is a reverse case in which the subordinate Court has refused to allow the amendment of the plaint in similar circumstances and the aforesaid decision is clearly applicable.

11. In Bhura v. Bahadursirgh 1976 RLW 212, the learned Single Judge of this Court has observed that the averments regarding denial of title of the plaintiff contained in the written statement, as a result of which the tenant incurred the disability provided under Section 13(1)(f) of the Act ran be taken into consideration in the suit itself and in that context it has been observed:

It will lead to unnecessary multiplicity of legal proceedings if the plaintiff would be obliged to file a second suit for ejectment on the ground of denial of title by the tenants and not allowed to avail of that plea in the suit in which written statement is filed specially when it has been pleaded in the plaint that defendants have renounced their character.

12. It is true that in the present case in the plaint, there is no plea about the respondent having renounced the character of the petitioner. But in my view that does not make any difference in as much as the amendment of the plaint is sought only for the purposes of adding the said plea.

13. In the light of the aforesaid decisions of this Court, the order of the Munsif disallowing the amendment in the plaint cannot be sustained.

14. The result is that the revision petition is allowed and the order of the Munsif City, Jodhpur, dated 14th December, 1977 is set aside and the Munsif City, Jodhpur, is directed to dispose of the application for amendment of the plaint Bled by the petitioner in accordance with law. There will be no order as to costs in this revision petition.


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