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Ayesha Khatoon Vs. Durga Sahaya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 286 of 1969
Judge
Reported inAIR1977Cal108
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantAyesha Khatoon
RespondentDurga Sahaya
Appellant AdvocateC.C. Ganguly and ;A.K. Chatterjee, Advs.
Respondent AdvocateB.K. Lal, Adv.
DispositionAppeal allowed
Cases ReferredPasupaleti Venkateswarlu v. The Motor
Excerpt:
- .....defendant on the ground of forfeiture of lease for non-payment of rent. during the pendency of the suit, the lease expired and the plaintiff sought for an amendment of the plaint putting forward an alternative ground of claim for possession on the basis of expiry of the lease. it was held that the prayer for amendment should be allowed and the plaintiff could be granted relief on that basis without driving him to a separate suit. the identical facts are before us and we agree with the principles laid down by the andhra pradesh high court. it is well settled that in proper cases the court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice. this power may be exercised.....
Judgment:

A.P. Bhattacharya, J.

1. This is an appeal by the plaintiffs whose suit for ejectment of a monthly tenant on the ground of forfeiture of the lease for nonpayment of rent was dismissed by the trial Court. The appeal is contested by the defendant. The defendant's prayer for relief against forfeiture under Section 114 of the Transfer of Property Act was allowed by the Court below and on compliance thereof the suit was dismissed. Mr. Ganguly arguing the appeal before us has submitted that the conduct of the defendant appellant has been such that the relief against forfeiture should not have been allowed to him as he had contested the suit and is also contesting the appeal with equal vigour.

2. Mr. Ganguly at the time of argument submitted that the lease had expired on 31st May 1976 and he made an application for amendment of the plaint by introducing an additional ground for eviction namely a ground which is now available to the plaintiffs appellants after the lease has expired by efflux of time on 31st May 1976 though this event happened during the pendency of this appeal. An application for amendment of the plaint by adding an alternative prayer to that effect as a ground for eviction is opposed by the respondent who has sworn an affidavit-in-opposition as a counter to the petition of the appellant. Mr. Ganguly contends that his application should be allowed not only for ends of justice but also for shortening litigation. He placed reliance upon a Bench Decision of Andihra Pradesh High Court reported in : AIR1959AP9 , Amritlal N. Shah v. Alla Annapurnamma. The facts of the Andhra Pradesh case are identical to the facts of the instant case. The plaintiff in the reported case brought a suit for eviction of the defendant on the ground of forfeiture of lease for non-payment of rent. During the pendency of the suit, the lease expired and the plaintiff sought for an amendment of the plaint putting forward an alternative ground of claim for possession on the basis of expiry of the lease. It was held that the prayer for amendment should be allowed and the plaintiff could be granted relief on that basis without driving him to a separate suit. The identical facts are before us and we agree with the principles laid down by the Andhra Pradesh High Court. It is well settled that in proper cases the Court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice. This power may be exercised even by the Court of appeal as an appeal is only in the nature of a re-hearing. Mr. Ganguly has also referred to a decision of the Supreme Court in Pasupaleti Venkateswarlu v. The Motor & General Traders, (C. A. No. 2120 = 22 of 1972) dated 18-3-1975 : [1975]3SCR958 . It was held that the Court could take cognizance of subsequent events or of any facts which had a material bearing on the right claimed by the party. On the facts of the reported case the subsequent event of recovery of another accommodation by the landlord during the pendency of a suit for ejectment was taken into consideration though it happened during the pendency of the litigation. It has been observed that it would be unfair to drive parties to a new litigation of unknown duration. The landlord was accordingly allowed to amend the petition if he had a case for eviction on any other legally permissible ground. The proposition laid down by the Andhra Pradesh High Court thus finds support in the Supreme Court decision which has been placed before us. The instant application for amendment in our view should therefore be allowed. The plaintiff appellant is permitted to amend the plaint in Title Suit No. 59 of 1966. Leave is also given to re-verify the plaint as prayed for. In that view of the matter the decision of the trial Court is liable to be set aside.

3. It is ordered that the appeal be allowed and the decree under appeal is set aside and the suit is sent back on remand to the trial Court. After the amendment of the plaint is carried out and re-verification is made the defendant would be given reasonable opportunity of filing additional written statement against the said amendment of the plaint and the Court will frame the relevant additional issue and entertain additional evidence, if any, both oral and written and decide the case. With regard to the findings of the trial Court on the issue already before him we do not express our views on those findings as at present. We make no order as to costs in this appeal.

4. Let the records go down to the trial Court promptly and the Court below will dispose of the suit within three months of receipt of the record in the lower Court.

Bimal Chandra Basak, J.

5. I agree.


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