Skip to content


Dr. R.D. Anklesaria Vs. Mrs. Kamala Roy - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3725 of 1976
Judge
Reported inAIR1977Cal464
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;West Bengal Premises Tenancy Act - Section 13; ;Transfer of Property Act
AppellantDr. R.D. Anklesaria
RespondentMrs. Kamala Roy
Appellant AdvocateChandi Das Roy Chowdhury, ;Rabindra Nath Datta and ;D. Lahiri, Advs.
Respondent AdvocateA. Chaudhuri and ;Amal Mitra, Advs.
Cases ReferredMa Shwe Mya v. Maung Mo
Excerpt:
- .....as 4a, woodburn park, calcutta on the ground of building and rebuilding after demolishing the suit premises on the allegation that such building or rebuilding could not be carried out unless the defendant petitioner was evicted from the suit premises.3. the defendant opposite party entered appearance in the said suit and contested the said suit by filing a written statement inter alia contending that the alleged purpose of building and rebuilding was mala fide, motivated and not tenable in law.4. during the pendency of the saidsuit the plaintiff opposite party made an application for amendment of plaint under order 6, rule 17 of the code of civil procedure for inserting paragraphs 8a to 8c inter alia to the effect that the defendant had without previous consent in writing of the.....
Judgment:

G.N. Ray, J.

1. This Rule is directed against Order No. 69 dated August 16, 1976 passed by the learned Subordinate Judge, 4th Court, Alipore in Title Suit No. 97 of 1975 allowing the application of the plaintiff for amendment of the plaint.

2. The facts concerning the Civil Rule are inter alia that the plaintiff opposite party instituted a suit for ejectment against the defendant petitioner in respect of a portion of premises No. 1, Woodburn Road also known as 4A, Woodburn Park, Calcutta on the ground of building and rebuilding after demolishing the suit premises on the allegation that such building or rebuilding could not be carried out unless the defendant petitioner was evicted from the suit premises.

3. The defendant opposite party entered appearance in the said suit and contested the said suit by filing a written statement inter alia contending that the alleged purpose of building and rebuilding was mala fide, motivated and not tenable in law.

4. During the pendency of the saidsuit the plaintiff opposite party made an application for amendment of plaint under Order 6, Rule 17 of the Code of Civil Procedure for inserting paragraphs 8A to 8C inter alia to the effect that the defendant had without previous consent in writing of the plaintiff sublet a portion of the suit premises as also had transferred or assigned a portion of suit premises and the defendant or persons residing in the premises had done acts contrary to the provisions of Clause (b) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, 1956 and that the suit premises though let out for residential purpose to the defendant was being used for purposes of trade and business, that is, for a purpose other than the purpose for which it was let out for more than four months without the consent in writing of the plaintiff.

5. The said application for amendment was opposed by the defendant and a petition of objection was filed by him to the aforesaid application for amendment of the plaint. In the said petition of objection, the allegations of the plaintiff were denied and it was contended by the defendant that the proposed amendment had been prayed to achieve the ulterior purpose of the plaintiff and the proposed amendment would also change the nature and character of the suit and as such the same should be rejected.

6. The learned Subordinate Judge by his aforesaid Order No. 69 dated August 16, 1976 allowed the said application for amendment of plaint inter alia on the finding that the proposed amendment will not change the nature and character of the suit. As aforesaid, the defendant petitioner challenged the said order of the learned Subordinate Judge in the instant Rule.

7. Mr. C. D. Roy Chowdhury the learned Advocate appearing for the defendant petitioner contended that the cause of action on which the suit for eviction was instituted by the plaintiff opposite (party was requirement of the suit premises for building and rebuilding by the plaintiff, but by the proposed amendment an altogether different cause of action was sought to be introduced, namely eviction was sought for on the ground of subletting of the suit premises without the consent of landlord and for user of the suit premises for purposes different from the purpose for which the premises was let. Referring to a decision made in the case of M. Laxmi & Co. v. Dr. A. R. Deshpande, reported in : [1973]2SCR172 , Mr. Roy Chowdhury submitted that the court can take notice of subsequent events where in view of subsequent events and/or altered circumstances, original relief had become inappropriate or the judgment of the court cannot be carried into effect because of the altered circumstances. But Mr. Roy Chowdhury contended that introduction of subsequent events and/or altered circumstances cannot be permitted if such introduction results in changing the nature and character of the suit and/or changing the cause of action on which the suit was based, in this connection,Mr. Roy Chowdhury referred to a decision made in the case of Kesho Ram Passey v. Dr. P. C. Tandon reported in . In the aforesaid case, a suit for ejectment was instituted on the ground of subletting by the defendant but in appeal the suit was remanded and the plaintiff sought to amend the plaint by adding two more causes of action namely the premises was sublet in 1947 and that the defendant had made structural alterations to the premises presumably after the suit was filed. It was held in that decision that the plaintiff could not be allowed to amend the plaint by adding new causes of action which had arisen after the filing of the suit. It was further held in the said decision that if the plaintiff had a grievance against the defendant for giving him other causes, he must pursue his remedy by another suit. Relying on this decision Mr. Roy Chowdhury submitted that in the amended petition it has not been specifically stated that the alleged illegal acts of subletting and user of the premises for a different purpose had been committed before the institution of the suit and in the absence of specific statement as to the time of commission of the alleged illegal acts, it should be presumed that the said illegal acts had been committed after the institution of the suit. Accordingly, the plaintiff cannot be permitted to introduce new causes of action occurring after the institution of the suit. Mr. Roy Chowdhury, however, conceded that the proposed amendment could have been made if the alleged causes of action namely subletting and wrongful user had occurred before the institution of the suit. It may be pointed out that on the principle of bar in changing 'cause of action' as alleged by Mr. Roy Chowdhury, the fact of subletting, whether made before or after the institution of the suit, hardly makes any difference.

8. Mr. Arijit Chaudhuri the learned Advocate appearing for the landlord opposite party, on the other hand, contended that the impugned order allowing the proposed amendment is quite legal and justified. The first decision referred to by Mr. Chowdhury in support of his case is by S. K. Datta J. in the case of Tinkari Das v. Jamuna Bala Dasi reported in : AIR1973Cal448 . In the said case a suit for eviction of tenant on the ground of forfeiture of lease was initially made and during the pendency of the suit an amendment of plaint was soughtfor on the ground that in the meantime the lease had expired by efflux of time and eviction was also prayed on the said ground of expiry of lease. In the said decision S. K. Datta J. referred to a number of decisions including the decisions made in the cases of Lachmeswar Prasad v. Keswarlal reported in AIR 1941 FC 5 and Laxmi & Co. v. Anantaram Deshpande reported in : [1973]2SCR172 and Nair Service Society Ltd. v. K. C, Alexander reported in : [1968]3SCR163 . After discussing the principles laid down in various decisions referred to by his Lordship it was held by S. K. Datta J. that for shortening the litigation and for ends of justice the Court was entitled to take Into consideration the subsequent events even if there was change in the ground of eviction and the nature and character of the suit being suit for recovery of possession of the suit property on eviction of the defendant was not in any way affected. Mr. Chaudhary then referred to the decision of the Supreme Court in the case of Pasupuleti Venkateswarlu v. The Motor & General Traders reported in : [1975]3SCR958 , In the said decision the Federal Court decision reported in AIR 1941 FC 5 and referred to by S. K. Datta J. in the : AIR1973Cal448 was relied on. Krishna Iyer J. giving judgment for the Court was pleased to observe to the following effect:

'...... It is basic to our processualjurisprudence 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 handmaid 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 pending the rules of procedure where no specific provision or fairplay is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court, If the litigation pends. the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on thispoint are legion, even as situations for applications of this equitable rule are myriad. 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.'

Relying on the aforesaid decision, Mr, Chaudhary contended that the fact of subletting even if arising after he had come to court, has a fundamental impact on the right of relief or the manner of moulding it and the said fact has been diligently brought to the notice of the trial court and the court cannot ignore this fact of subletting, Mr. Chaudhary further contended that there was no disentitling factor for deciding the suit on the basis of subsequent events inasmuch as the suit was suit for eviction on the determination of tenancy of the tenant defendant and by the proposed amendment, nature and character of the suit was not changed. In this connection, Mr. Chaudhary referred to the decision of a Full Bench of the Delhi High Court in the case of Smt. Abnash Kaur v. Dr. Avinesh Nayyar reported in : AIR1975Delhi46 , It was held in the said decision that there was no inflexible rule that a cause of action arising subsequent to the filing of the petition for eviction cannot be added to the petition by way of amendment. Mr, Chaudhary also referred to the decisions made in the cases of Dwarka Prasad Mahawar v. Gopaldas Mahawar reported in (1976) 80 Cal WN 269 and Jitendra Nath Das v. Dr. Kalyan Kr Banerjee reported in : AIR1977Cal49 , In Dwarka Prosad's case, Rule Bhatta-charya J. allowed amendment of plaint for adding ground of unauthorised construction made during the pendency of the suit in an eviction proceeding against the tenant on the ground of default in payment of rent In Jitendra Nath Das'e case, the view of S. K. Datta J. who referred the case to Division Bench, was approved and it was held that in the suit for eviction of a tenant, the cause of action was the determination of the tenancy and addition of the ground of reasonable requirement of the suit premises to the original ground of default in payment of rent by way of amendment was quite justified. The decision of Delhi Full Bench and of B. BhattaeharyaJ. as referred to above were also considered and relied on by the Division Bench of this Court in the aforesaid case of Jitendra Nath Das : AIR1977Cal49 . In this connection definition of 'tenant' under the West Bengal Premises Tenancy Act may also be referred to. A tenant whose contractual tenancy had been determined by a valid notice to quit but against whom no decree for eviction has been passed remains a 'tenant' under the Premises Tenancy Act, Consequently a statutory tenant who continues to be the tenant under the Premises Tenancy Act because of special definition of the 'tenant' is liable to be evicted under the said Act if he commits any illegal act of subletting and/or wrongful user of the suit premises within the meaning of Section 13 of the Premises Tenancy Act, In this context, a tenant governed by the Transfer of Property Act simpliciter and a tenant governed by the West Bengal Premises Tenancy Act stand on altogether different footing. In the former case, after the determination of the contractual tenancy the tenant ceases to be a tenant any further and as such raising of unauthorised structure by such person cannot attract the provisions of Section 108 of the Transfer of Property Act and no suit for eviction of a tenant for such wrongful act can be filed. But in the case of a statutory tenant under the West Bengal Premises Tenancy Act, an act of subletting attracts the provisions of Section 13 of the Premises Tenancy Act and such tenant is liable to be evicted on the ground of subletting even if such subletting is made after the determination of contractual tenancy. Accordingly. the nature and character of the suit namely the suit for eviction of a tenant is not changed in the case of a tenant governed by the Premises Tenancy Act Lastly, it will be relevant to consider another salutary principle noted by the Privy Council on the question of amendment of plaint. Reference may be made to the decision in the case of Ma Shwe Mya v. Maung Mo reported in AIR 1922 PC 249. Privy Council laid down that in the absence of other disentitling factors if by reason of subsequent events certain rights accrue to the palintiff the plaintiff will be entitled to claim reliefs under those rights by amendment but it will not be open to permit a new case to be made on facts which were available to the plaintiff before the presentation of the original plaint but were not pleaded. This decision of the Privy Council hasbeen referred to from time to time in various decisions of different High Courts including this Court and also of the Supreme Court, Now turning to the facts of the case, it will be found that the plaintiff in her petition of amendment had stated inter alia that after receipt of a registered letter from the Commercial Tax Officer of the State Government on or about June 23, 1976 the plaintiff was surprised to note that the defendant had sublet the suit premises and the defendant had allowed others to carry out business in suit premises. Paragraph 7 of the said application for amendment of plaint runs as follows:--

'That your petitioner therefore prays that since additional new grounds for the eviction of the defendant has arisen after the filing of the suit and to avoid multiplicity of suits, it is in the interest of justice that your petitioner may be allowed to amend the plaint by adding the following paragraphs after paragraph 8 of the plaint.'

In the petition of objection the defendant, although denied the allegation of subletting and/or carrying on business in the suit premises, did not allege that the plaintiff had knowledge of all the said facts before the presentation of the original plaint. It is thus evident that there is no disentitling factor for deciding the suit on the basis of subsequent events, diligently brought to the notice of trial Court, undoubtedly having fundamental impact on the right of relief or the manner of moulding it. As aforesaid, it has been persistently laid down by this court and also by the Supreme Court in the aforesaid decisions that in such circumstances, the Court cannot ignore the subsequent events on the salutary principle of avoiding multiplicity of legal proceedings, shortening the course of litigation and achieving the ends of justice. Needless to point out that the principle laid down in Kesho Ram Passey's case has not been approved by this court in a number of decisions referred to hereinbefore, and also In the Full Bench decision of the Delhi High Court : AIR1975Delhi46 .

9. For the reasons aforesaid, the Rule is discharged. There will, however, be no order as to costs.

S.K. Datta, J.

10. I agree.


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