1. This rule has been obtained by the tenant defendant in a suit for ejectment instituted by the landlord opposite party on the ground of default in payment of rent. In the said suit the plaintiff opposite party filed an application for amendment of the plaint by introducing the ground of reasonable requirement of the suit premises for his own use and occupation. This application for amendment was allowed by the trial court. Against the said order the tenant defendant has obtained the present rule.
2. The facts which are relevant for the purpose of present rule are as follows : In the year 1967 the plaintiff opposite party instituted a suit for eviction against the defendant petitioner on the ground of default. That was Title Suit No. 309 of 1967. In that suit the trial court found that the defendant petitioner was a defaulter in payment of rent for some months. In spite of this finding the suit was dismissed on the ground that there had been substantial compliance with Sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act'). The trial court therefore found that the defendant petitioner was entitled to protection against eviction under Sub-section (4) of Section 17 of that Act and accordingly dismissed the suit. The plaintiff opposite party thereafter served a fresh notice to quit alleging default on the part of the petitioner for a subsequent period, and thereafter he filed the instant suit, being Title Suit No. 17 of 1971 for eviction of the petitioner. The defendant petitioner entered appearance in the suit and filed an application under Section 17 (2A) of the Act. There is no dispute between the parties that the defendant petitioner has been depositing rent in terms of the order passed under Section 17 (2A) of the Act.
3. The present rule came up for hearing before S. K. Datta J. before whom reliance was placed on behalf of the petitioner upon the decision in Arun Kumar Chatterjee v. Karuna Rakshit, (1974) 78 Cal WN 572 wherein N. C. Mu-kherjee J. took the view that an amendment of the plaint should not be allowed under such circumstances as in the present case. S. K. Datta J. considered a number of decisions which had been cited before him on behalf of the parties and his Lordship was unable to accept the view taken by N. C. Mukherjee J. His Lordship accordingly referred the matter to the Division Bench. The rule has accordingly come up before us for hearing.
4. Mrs. Bose, learned Advocate for the petitioner, has contended before us that the introduction of the ground of reasonable requirement for eviction of her client would change the nature and character of the suit. She has further contended that such amendment has been prayed for on a different cause of action which cannot be joined with the cause of action upon which the present suit has been filed. This submission of Mrs Bose cannot be accepted. 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.
5. The next contention of Mrs. Bose has been that the plaintiff opposite party did not mention the ground of reasonable requirement in the notice to quit which was served by them. In the said notice, it was contended, the only ground mentioned is the ground of default. That being so, it was argued by Mrs. Bose, the plaintiffs' application for amendment is not bona fide and it ought not to have been allowed by the trial court. Whether the plea of reasonable requirement sought to be set up by the opposite party is bona fide or not, that is to say, whether there exists any requirement on the part of the landlord or not. is a matter which is to be considered at the hearing of the suit itself. The omission to mention the ground of reasonable requirement in the notice to quit is a relevant factor to be taken into consideration at the final hearing of the suit. But at this stage it is not for us to go into that question, and upon the materials on record it cannot be said that the plaintiffs' application for amendment is not bona fide.
6. On behalf of the petitioner i1 was contended that the averment made in the application for amendment of the plaint by the plaintiffs is to the effect that the plaintiff No. 1 was in Military Medical Service and on retirement from the Military Medical Service he joined the West Bengal Health Service from which he ultimately retired in 1971. Mrs Bose, therefore, contended that the plaintiff was fully aware that he would retire in 1971 and accordingly he ought to have mentioned the ground of reasonable requirement on his part in the notice to quit. The plaintiff not having done that, it was argued, the application for amendment was an afterthought, and was calculated to deprive the defendant of the benefit which had accrued to him under Section 17 (4) of the Act. In support of this contention reliance was placed upon the decision in Arun Kumar Chatterjee v. Karuna Rakshit, (1974) 78 Cal WN 572, where N. C. Mukherji J. took the view that an amendment of the plaint should not be allowed under such circumstances as it would jeopardise the defendant's right of protection against eviction which the defendant had acquired under Section 17 (4) of the Act. In that case the suit was originally brought on the ground of default in payment of rent. Subsequently another ground was sought to be added by way of amendment of the plaint to the effect that the tenant-defendant had without the knowledge and consent of the landlord sublet a portion of the demised premises and had been creating nuisance and causing material damage to the property. In that case the tenant-defendant had complied with an order made under Section 17 (2) of the Act. His Lordship took the view that the effect of allowing the amendment would be to take away the benefit which had accrued to the defendant on account of his having complied with the order made under Section 17 (2) of the Act A similar point came up for decision in the case of Dwarka Prosad Mahawar v. Gopal Das Mahawer, (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 and I am unable to subscribe to the view taken by N. C. Mukherjee J. in the rase of Arun Kumar Chatterjee (1974) (sic) Cal WN 572 (supra).
7. It may be mentioned here that Mr. Ghoudhury appearing on behalf of the landlord opposite party has drawn our attention to annexure 'X' to his affi-davit-in-opposition. which is a copy of the judgment delivered in the earlier ejectment suit between the parties, namely, Title Suit No. 309 of 1967. Mr. Chou-dhury has pointed out that in the earlier Ejectment Suit the tenant-defendant was found to be a defaulter, but he was given protection inasmuch as he complied with Sub-section (1) of Section 17. Mr. Choudhury accordingly argued that the tenant-defendant having once obtained relief under Sub-section (4) of Section 17 in an earlier suit, and he having committed default within a period of twelve months, is not entitled to protection against eviction on the ground of default under the proviso to Sub-section (4) of the said section. This, however, is a matter which is to be considered by the trial court at the hearing of the suit. It is not, therefore, necessary for us to express any opinion in so far as this point raised by Mr. Choudhury is concerned.
8. One thing is, however, clear from the contention which has been raised by Mr. Choudhury on behalf of the landlord-opposite party, namely, that compliance with the provisions of the various Sub-sections of Section 17 does not necessarily afford protection to the tenant against eviction on the ground of default. Even if the tenant is entitled to protection against eviction on the ground of default the amendment sought for in the instant case does not take away that right from the tenant. If the landlord fails to establish the ground of reasonable requirement and if the tenant is found to be entitled to protection against eviction on the ground of default the suit will naturally fail. If. on the other hand, the landlord succeeds in establishing the ground of reasonable requirement then a decree will be passed in his favour, even if the tenant is entitled to protection against eviction on the ground of default under Section 17 (4) of the Act.
9. On behalf of the petitioner Mrs. Bose relied upon the decision in Gopal Krishnamurthi v. .Sreedhara Rao, : AIR1950Mad32 and contended that when at the time of institution of the suit the plaintiff was aware of the fact that he reasonably requires the suit premises for his own use and occupation but he failed to take it as a -ground for eviction in the suit the subsequent application for amendment should not be allowed. The said case is, however, completely different on facts. In that case the amendment sought for introduced completely new facts which were not pleaded in the plaint as it originally stood. The plaintiff had knowledge of those facts at the time when the plaint was filed. In our view, the decision in that case can have no application to the present case.
10. The next case cited on behalf of the petitioner is Ghaffar Haji Shakoor v. S. M. Saeed, : AIR1974Cal83 . The observations relied on by Mrs. Bose occurring at paragraph 19 of the report have been made in connection with the final decision arrived at in the suit and not on the question of amendment of the plaint. In that case M. M. Dutt J. held that although the landlord is not required to state the grounds for eviction in the notice to quit, but if he chooses to mention one ground and subsequently tries to establish another ground at the hearing of the suit such conduct on the part of the landlord is a relevant factor to be taken into consideration in deciding whether the ground subsequently sought to be established really exists or not. The observations made in that decision does not, therefore, help the petitioner in the present case. Mrs. Bose also referred to the decision in Biswanath Gupta v. Na-rendra K. Tandon, (1974) 78 Cal WN 849 where a Division Bench of this Court took a view similar to the view taken by M. M. Dutt J. and held that where the landlord mentions one ground in the ejectment notice but subsequently makes out a case on another ground such omission on the part of the landlord to mention the subsequent ground in the notice to quit is a relevant factor to be taken into consideration in deciding whether such ground really exists or not. There can be no quarrel with the proposition of law Laid down by their Lordships of the Division Bench. But the question here is quite different, We are concerned with the question whether the application for amendment should be allowed or not Whether the Court will decide in favour of the plaintiff or not in so far as the new ground is concerned is a question which is to be considered at the hearing of the suit and not at this stage. The cases relied on by Mrs. Bose, therefore, are of no assistance to her.
11. I, therefore, agree with the view expressed by S. K. Datta J. and as there is no impediment in law in allowing the application for amendment of the plaint I hold that the said application was rightly allowed by the trial court. For the reasons mentioned above this rule is discharged. But in the circumstances I make no order as to costs.
R. Bhattacharya, J.
12. I fully agree with my learned brother. The case of Dwarka Prosad Mahawar v.. Gopaldas Mahawar, 80 Cal WN 269 referred to in the judgment of my learned brother was decided by me but I find no reason to change my view expressed in the said judgment.