Skip to content


Sudhir Kumar Bose Vs. Gobardhandas Jairambhai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.O. Nos. 2213 to 2215 of 1983
Judge
Reported inAIR1984Cal352
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17(4) and 17D; ;West Bengal Premises (Amendment) Act, 1969; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSudhir Kumar Bose
RespondentGobardhandas Jairambhai and ors.
Appellant AdvocateSakti Nath Mukherjee, ;Tarun Chatterjee and ;Jiban Ratan Chatterjee, Advs.
Respondent AdvocateS.P. Roy Chowdhuri and ;Amit Kumar Rakshit, Advs.
DispositionApplication dismissed
Cases ReferredT. Arivandandam v. T. V. Satyapal
Excerpt:
- .....the mandatory provisions of section 17(4) of the west bengal premises tenancy act and that the decree passed in appeal was without jurisdiction.4. one of those suits was dismissed by the trial court against which an appeal was taken to this court, being f. a. 231 of 1976. the trial court held that the lower court had no jurisdiction to sit over the judgment and decree passed by this court. in appeal it was held that the suit was manifestly vexatious and meritless and that the observations of the lower court were affirmed. the appeal was dismissed in february, 1982. there is hardly any dispute as to the facts stated above. after the dismissal of the appeal the three petitioners filed independent applications for amendment of their plaints. in the said applications it was pleaded that.....
Judgment:
ORDER

B.C. Chakrabarti, J.

1. These three revisional applications under Section 115 C. P. Code have been heard analogously as contested applications.

2. All the three applications aredirected against order Dt. April 29, 1983passed in T. S. Nos. 732, 730 and 727 of1974 respectively -- all pending in the 9thBench of City Civil Court at Calcutta. Bythe orders impugned the learned Judge hasrejected independent applications foramendment of the plaints.

3. In order to appreciate the point involved a brief narration of facts would be helpful and there is no dispute as to the facts leading to the filing of the applications for amendment. They are : --The Opp. Parties as plaintiffs filed six suits for eviction against six tenants -- the three petitioners herein being three of them. The suits were on the ground of default. All the suits were dismissed by the trial court in May 1961. The suits were heard analogously, The landlord preferred as many appeals to the court and the appeals were allowed on 27-11-1970. Decrees for eviction were passed in all the suits. Thereafter the tenants, including the present petitioners, filed six suits -- T. S. 732, 730 and 727 of 1974 being amongst them. This time there was no order for analogous hearing. The case of the plaintiffs as made out in those suits is substantially identical. The plaintiffs prayed for declaration that the decrees passed in the first Appeals to this court were void, without jurisdiction and not binding on the parties, and for injunction restraining the Opp. Parties landlords from executing the decrees. It was alleged in the plaints that the decrees were passed without considering the mandatory provisions of Section 17(4) of the West Bengal Premises Tenancy Act and that the decree passed in appeal was without jurisdiction.

4. One of those suits was dismissed by the trial court against which an appeal was taken to this court, being F. A. 231 of 1976. The trial court held that the lower court had no jurisdiction to sit over the judgment and decree passed by this court. In appeal it was held that the suit was manifestly vexatious and meritless and that the observations of the lower court were affirmed. The appeal was dismissed in February, 1982. There is hardly any dispute as to the facts stated above. After the dismissal of the appeal the three petitioners filed independent applications for amendment of their plaints. In the said applications it was pleaded that the High Court overlooked and/or failed to consider the intent and purport of the provisions of S. I7D which was introduced by the West Bengal Premises (2nd Amendment) Tenancy Act, 1969 which was promulgated prior to the decrees passed by this court. On such averments it was prayed that the plaints be amended by incorporating a prayer for a declaration that the non-consideration of the provisions of Section 17D was contrary to law, without jurisdiction and against principles of natural justice and as such the decrees were inexecutable. The learned Judge in disposing of the said applications observed that no applications for invoking the relief under Section 17D were filed in time and that the prayer for amendment was Vexatious, harassing and without any merit. On such a view of the matter the applications were rejected and hence the present revisional applications.

5. The Opp. Parties who had lodged caveat are contesting the applications.

6. Mr. Mukherjee appearing on behalf of the petitioners contended that the court below did not consider nor did it find that the amendment was unnecessary for a proper consideration of issues involved in the suit and that the court went wrong in refusing the amendment on a hypothesis that there was no merit in it. Mr. Mukherjee complained that the question whether the points raised was with or without any merit should have been left to be considered at the appropriate stage.

7. In support of the above contention reference was made to a decision in the case of Abdul Rahim v. Abdul Jabbar reported in : AIR1950Cal379 . It was held in that case that the plaintiff who seeks the amendment will not be able to establish the facts necessary to support the amended plaint is no ground for refusing the amendment.

8. Another case, Dharmalinga v. Krishna Swami, AIR 1949 Mad 467 was also referred to. There too it has been observed that truth or falsity of the case put in amendment need not be considered while considering whether amendment should or should not be allowed.

9. In both these cases amendment was sought for to introduce new questions of facts which facts, the courts felt could not be established in the face of the pleadings and evidence. It was observed that the main point to see was whether the amendment was called for to decide the real issue in the suit. Once such a situation is established the question whether the party would be eventually able to establish the fact would not be a relevant consideration.

10. In the facts of the present case, however, these considerations do not arise at all. In a Bench decision of this court, K. N. Mukherjee v. D. N. Mukharjee, (1979) 2 Cal LJ 284 it was observed that normally the court is not required to consider the effect of the amendment since the effect would be taken into account once the amendment is allowed but that is not the position in all cases. Where the relief claimed is merely a camouflage with a motive not too fair or bona fide. In such a case it is open to the court to consider the effect of the amendment in considering how far the amendment is bona fide or not.

11. In the case before us, from the facts that preceded in filing of the amendment petitions, 1 am firmly of the opinion that the amendment prayed for is neither tenable in law nor is it bona fide. Section 17D of the West Bengal Premises Tenancy Act was inserted by West Bengal Premises Tenancy (2nd Amendment) Act, 34 of 1969 empowering the court to set aside decrees passed on account of defaults in the payment of the rent. The first essential necessary for invoking the amended provision is where before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968 a decree for the recovery of possession of any premises is passed. In the present case the decrees were passed after the commencement of the Act, by the High Court in 1970. Therefore, the first condition is not satisfied. Secondly the provision lays down that in such a situation as stated above and where possession has not been delivered in execution of the decree, the tenant may within sixty days from the date of commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969 make an application to the court for setting aside the decree. Rightly or wrongly decrees have been passed in these cases after the amendment Act came into force. Whatever may be the relief available to the petitioner's there cannot be any doubt that Section 17D is wholly inapplicable. The petitioners attempt to amend the plaint by invoking Section 17D is patently not bona fide, apart from being belated beyond redemption.

12. In the context of a suit filed after unsuccessfully trying to evade a decree for eviction in a series of litigation, the Supreme Court in the case of T. Arivandandam v. T. V. Satyapal, : [1978]1SCR742 took a stern view of the matter. It was observed that if on a meaningful reading of the plaint it appeared that it was manifestly vexatious and meritless the court should exercise its power of rejection of plaint under Order VII, Rule 2, C.P.C. Although the observation was made in connection with the powers of the court under Order VII, C. P. Code, the basic principle laid down is that the court is not powerless to take action when the plaint discloses merely an illusory cause of action or is otherwise vexatious or meritless. The same considerations may justifiably prevail in considering a prayer for amendment.

13. Having considered the antecedent facts leading to the filing of the amendment petitions, and the vexatious nature thereof, I think the proposed amendment was rightly refused. I am not therefore, inclined to interfere with the orders impugned in these revisional applications. All these applications are therefore liable to fail and are accordingly dismissed.

14. There will be no order for costs.

15. Let the order be communicated to the court below forthwith.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //