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Narendra Nath Pal Choudhury and anr. Vs. G.L. Malhotra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 764 of 1980
Judge
Reported inAIR1982Cal358
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantNarendra Nath Pal Choudhury and anr.
RespondentG.L. Malhotra and ors.
DispositionApplication allowed
Cases ReferredAyesha Khatoon v. Durga Sahaya
Excerpt:
- ..... (e)' ayesha khatoon v. durga sahaya, reported in : air1977cal108 . in this case the landlord had filed a suit for ejectment of tenants on the ground of forfeiture of a lease. the suit was dismissed by the trial court and an appeal was preferred by the landlord. pending appeal the period of lease expired and the appellant applied for amendment of the plaint by claiming relief on the additional ground of expiry of the lease. this application was filed in the appeal. a division bench of this court held that inasmuch as the courts were entitled to take notice of subsequent facts and grant relief to the parties accordingly, the same principle should be extended for the purpose of amendment of plaints. this was necessary to shorten litigation and for the ends of justice. the division bench.....
Judgment:
ORDER

Dipak Kumar Sen, J.

1. Narendra Nath pal Choudhury and Eiswendra Nath Pal Choudhuri, the plaintiffs, filed this suit against G. L. Malhotra, Bijanendra Nath Pal Choudhuri and Kumar Shankar Pal Choudhuri, the defendants, claiming, inter alia, a decree against the defendant No. I for vacant possession of the portion of premises No. 79A, Acharya Jagadish Chandra Bose Road, Calcutta; decree for Rupees 5,000/- as damages against the defendant No. 1; alternatively an enquiry into damages and decree for the amount as may be found due upon such enquiry; a further decree for Rs. 72,549.22 p, against the defendant No. 1 and alternatively decree against the defendant No. 1 for such other sum as may be found fit and proper; decree for mesne profits and future profits at the rate of Rs. 50/- per day on and from the 1st Feb. 1980 till delivery of possession; alternatively, an enquiry into mesne profits and a decree for the sum as may be found due upon such enquiry and other reliefs.

2. The plaintiffs' case is that the said portion of the said premises was demised under a lease in favour of the defendant No. 1' by a registered deed dated the 31st March, 1960 for a period of 21 years on and from April 1960 at an agreed rent of Rs, 350/- per month. The plaintiff alleges further that the defendant No. 1 committed breaches of the covenants and conditions in the said lease, inter alia, as follows :

(a) The defendant No. 1 defaulted in payment of the monthly rent since March 1969. The said default has continued.

(b) The defendant No. 1 has used or permitted the said premises to be used for purposes other than those envisaged in the lease and also has wrongfully in-stalled machinery therein and is carrying on manufacturing activities in the premises.

(c) The defendant No. 1 stored injurious inflammable and combustible materials in the said premises.

(d) The aforesaid wrongful acts of the defendant No. 1 have caused damage to the said premises and constitute a nuisance.

(e) The defendant No. 1' has made structural alterations to the premises by constructing a mezzanine floor without the approval of the plaintiff.

3. By the present application made on a summons dated the 27th July, 1981 the plaintiff seeks to amend the plaint by, incorporating therein the following:--

The term of 21 years under the said lease has expired on the 31st March 1981 by efflux of time and that the defendant No. 1 has failed to deliver up possession of the demised premises on the 1st Apr. 1981 in spite of demands.

4. The defendant No. 1' has affirmed an affidavit on the 28th Aug. 1981 which has been filed in opposition to this application. It Ss, inter alia, alleged in this affidavit that the suit having been filed on the 28th Aug. 1980, the plaintiff is not entitled to effect the amendment as applied and introduce a cause of action which arose on the 1st April 1981. If the amendment is allowed, the cause of action introduced by the amendment would relate back to the date of institution of the suit.

5. Learned counsel for the plaintiff submitted at the hearing that the amendment sought to be incorporated is based on subsequent facts material to this suit and 'the Court should take notice of the same to do justice to the parlies and to shorten the proceedings. Contentions to the contrary were made on behalf of the defendant No. 1.

6. Several decisions were cited at the bar in support of their respective contentions which are as follows :

(a) Rajeshwar Dayal v. Padam Kumar Kothari reported in . In this case, a suit for eviction of a tenant was filed on the 24th Jan, 1966 on the ground of personal necessity and an application was made to amend the plaint on the ground of alleged default in payment of rent on 3rd Apr. 1967. In disallowing the application a single Bench of the Rajasthan High Court held, inter alia, that the Court has no power either under Section 153 or under Order 6, Rule 17 of the C. P. C. to allow an amendment of the plaint to include a cause of action which was not in existence on the date of institution of the suit.

(b) M/s. M. Laxmi & Co. v. Dr. Anant R. Deshpande, reported in : [1973]2SCR172 . This decision was cited for the following observation of the Supreme Court (Para 27)

'It is true that the Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate, by subsequent events, the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of changes of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event. If the property which is the subject-matter of suit is no longer available the court will take notice of such event. The Court takes notice of subsequent events to shorten litigation, to preserve rights of both the parlies and to subserve the ends of justice.' (c) Pasupuleti Venkateswarlu v. Motor & General Traders, reported in : [1975]3SCR958 . This decision was cited for the following observations of the Supreme Court (Para 4) :

'It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice -- subject, of course, to the absence of other disentitling factors or just circumstances,'

'We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.'

(d) Rameshwar v. Jot Ram, reported in : [1976]1SCR847 , where the Supreme Court observed as follows (Para 8) :

'It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action.

Courts can, however, take not of subsequent events and mould the relief accordingly, but this can be done only in exceptional circumstances, Rights vested by virtue of a statute cannot be divested by this equitable doctrine.'

(e)' Ayesha Khatoon v. Durga Sahaya, reported in : AIR1977Cal108 . In this case the landlord had filed a suit for ejectment of tenants on the ground of forfeiture of a lease. The suit was dismissed by the trial Court and an appeal was preferred by the landlord. Pending appeal the period of lease expired and the appellant applied for amendment of the plaint by claiming relief on the additional ground of expiry of the lease. This application was filed in the appeal. A Division Bench of this Court held that inasmuch as the Courts were entitled to take notice of subsequent facts and grant relief to the parties accordingly, the same principle should be extended for the purpose of amendment of plaints. This was necessary to shorten litigation and for the ends of justice. The Division Bench referred to the decision of the Supreme Court in Pasupuleti Venkateswarlu (supra),

7. In view of the principles laid down by the Supreme Court in the several judgments noted above and also in view of the judgment of the Division Bench of this Court, which is binding on me, in my view, the plaintiff is entitled to succeed in this application. No doubt the plaintiff is seeking to introduce a cause of action which was not in existence when the suit was filed, but if the Courts are empowered to take note of the subsequent facts there is no reason why the plaintiff should be prohibited from taking advantage of such cognizance by amending his plaint. If the plaintiff is to succeed on his original cause of action and nothing else, as has been urged on behalf of the defendants, then in no case the Court can take note of subsequent facts. The amendments asked for, if allowed, are expected to shorten the proceedings and to prevent multiplicity of proceedings,

8. For the reasons above this application is allowed. There will be an order in terms of prayers (a), (b), (c), (d) and (e) of the petition. The amendments to ba incorporated within a fortnight from date on a signed copy of the minutes of this order on which the Department and the parties will act. The defendant will be at liberty to file an additional written statement within three weeks from the service of the amended copy of the plaint. The plaintiffs undertake to draw up, complete and file their order.

9. There will be a stay of operation of this order for one week.


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