Research › Browse › Judgment

Rajasthan High Court · body

1979 DIGILAW 4 (RAJ)

Mohammed Ishaq v. Smt. Lachhi

1979-01-03

S.C.AGRAWAL

body1979
JUDGMENT 1. - This revision petition has been filed under Section 115 of the Code of Civil Procedure against the order dated 14th December, 1977 passed by the Munsif City, Jodhpur, whereby the application for amendment of the plaint filed by the petitioner in case No. C.O. 102/77 was dismissed by the Munsif City, Jodhpur. The suit aforesaid has been filed by the petitioner for the eviction of the respondent on the ground that the respondent had committed default in the payment of rent. In her written statement filed in the said suit, the respondent has denied that she is a tenant of the petitioner and has stated the premises in question were taken on rent by her from Shri Noor Mohammed. After the filing of the aforesaid written statement, the petitioner moved an application for amendment of the plaint so as to add a ground that respondent, having denied the relationship of the landlord and tenant, cannot take the benefit of the provision of the Rajasthan Premises (Eviction & Control of Rent) Act, 1950, (hereinafter referred to as the "Act". It may be observed that Section 13(1)(f) of the Act provides that the bar against he passing of a decree for eviction of a tenant will not apply in a case where the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant. The Munsif City, by his order dated 14th December, 1977 dismissed the application filed by the petitioner for amendment of the plaint on the view that no purpose would be served by allowing the amendment sought by the petitioner in the plaint in as much as the denial of title of the petitioner by the respondent in her written statement could not afford a ground for obtaining relief in the present suit and that on the basis of the aforesaid denial, the petitioner can bring a fresh suit for the eviction of the respondent. Aggrieved by the aforesaid order passed by the Munsif City, Jodhpur, the petitioner has filed this revision petition. 2. Aggrieved by the aforesaid order passed by the Munsif City, Jodhpur, the petitioner has filed this revision petition. 2. Shri D.K.Parihar, the learned counsel for the petitioner has submitted that in passing the order dated 14th December, 1977, the Munsif City has committed an error in proceeding on the basis that the denial of the petitioner by the respondent in her written statement cannot afford a ground for obtaining relief in the present suit and that the only course open to the petitioner is to file a suit on that ground. The learned counsel for the petitioner, in this connection, has placed reliance on the decision of this Court in Bhura v. Bahadur Singh, 1976 Rent Control Reporter 546 : 1976 RLW 212, and Premlal v. Jadavchand, 1977(2) Rent Control Reporter 414 : 1977 RLW 265. 3. Shri R.R. Chacha, the learned counsel for the respondent has raised a preliminary objection to the maintainability of the revision petition and has submitted that the Munsif had jurisdiction either to allow the amendment in the plaint or to refuse the said amendment and that merely because the Munsif had refused to allow the amendment cannot afford a ground for interfering in revision under Section 115 of the Code of Civil Procedure . The learned counsel has submitted that even if the Munsif had committed an error of law in refusing to allow the amendment of the plaint, such an error could not be regarded on an error falling within the ambit of clause (c) Sub-section (1) of Section 115 of the Code of Civil Procedure as amended by Act No. 104 of 1976. In support of the aforesaid submission, the learned counsel for the respondent has placed reliance on the decision of this Court in Harak chand v. State of Rajasthan, 1968 WLN 458. Relying on the provision which has been inserted in Sub-section (1) of Section 115 C.P.C. by Act No. 104 of 1976, the learned counsel for the respondent has submitted that the impugned order passed by the Munsif in the present case does not cause irreparable injury to the petitioner and therefore this Court is not competent to vary or reverse the order passed by the Munsif, rejecting the amendment application of the petitioner. On the merits the submission of the learned counsel for the respondent is that an amendment in the plaint was not necessary and that even without such an amendment, it would be open to the petitioner to urge in the present suit that the respondent is liable to be evicted in view of Section 13(1)(f) of the Act. 4. As regards the preliminary objection with regard to the maintainability of the revision petitioner raised by the learned counsel for the respondent, it may be noticed that in Harak Chand v. State of Rajasthan (supra), a full bench of this Court, while considering the provision of clause (c) in Section 115 of the Code of Civil Procedure , has laid down that Clause (c) is application only if the Subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity and that illegality or material irregularity must have occurred in the manner in which the jurisdiction of the Sub-ordinate Court is exercised, i.e. in the manner in which that case is heard or decided. The aforesaid decision of the full Bench of this Court in Harak Chand v. State of Rajasthan (supra) was considered by a learned Single Judge of this Court (Lodhe. J) in Roop Naram v. Premchand T. Nathani, 1976 RLW 594, arising out of an order disallowing the plaintiff's application for amendment of the plaint and it has been observed : "The trial Court has not addressed itself to the requirement of Order 6 Rule 17 C.P.C. which enjoins upon the Court to allow all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties .........In disallowing the plaintiff's prayer, the Court below has ignored the well established principles to be kept in mind in the matter of allowing amendments and its findings cannot be said to be a judicious one. In this view of the matter, a case for interference has been made out under Section 115(C) of the Code of Civil Procedure". 5. In this view of the matter, a case for interference has been made out under Section 115(C) of the Code of Civil Procedure". 5. In view of the aforesaid decision, it must be held that a revision petition under Section 115 is maintainable in a case where the subordinate Court has disallowed the amendment by ignoring the principle which govern the exercise of the said power to allow an amendment and it will have to be examined as to whether the Munsif, in disallowing the amendment in the present case has kept in mind the aforesaid principles. 6. The other submission urged by the learned counsel for the respondent based on proviso (b) to Section 115(1) of the Code of Civil Procedure cannot also be accepted in as much as a result of the order passed by the Munsif in the present case the petitioner will be debarred from submitting in the present suit that the respondent is liable to be evicted in view of Section 13(1)(f) of the Act in as much she has denied the title of the petitioner. The petitioner will thus suffer irreparable injury inasmuch he will have to file a fresh suit to take the said ground based on the provisions of Section 13(1)(f) of the Act and this will involve multiplicity of proceedings. In my view, therefore, the preliminary objection with regard to the maintainability of the revision petition urged by the learned counsel for the respondent cannot be sustained. 7. As to the merits, I am of the opinion that in disallowing the amendment of the plaint on the view that any statement contained in the written statement could not be made the basis for seeking relief in the suit itself and that it could only be made a ground for obtaining relief in the fresh suit that may be filed by the petitioner, the Munsif did not address himself to the requirements of Order 6 r. 17 C.P.C. which enjoines upon the Court to allow all such amendments as may be necessary for the purpose of determining the real question in controversy between he parties and has thus failed to examine jurisdiction vested in him by law and has also committed illegality and material irregularity in the exercise of his jurisdiction. 8. 8. In Premlal v. Jadavchand (supra) a Division Bench of this Court has upheld an order allowing an amendment of the plaint to introduce a new ground of eviction based on Section 13(1)(a) of the Act which had arisen subsequent to the filing of the suit for eviction and which was different from the ground of which the eviction was sought initially. In the said case, the Court has expressed the view that grounds stated in Section 13(1) of the Act are, nothing but conditions upon which a decree can be passed or eviction ordered and that the existence of one of the grounds mentioned in Section 13(1) of the Act, does not constitute a necessary part of the cause of action on a suit for eviction of a tenant from an accommodation. In the aforesaid decision this Court has held that Section 13(1) of the Act is nothing but a procedural restriction and does create a substantive right. In the said case, the Court was dealing with a case in which the Subordinate Court had allowed an application for amendment of the plaint incorporating the additional ground under Section 13(1)(a) alleging that the defendants had neither paid, nor tendered the amount of rent for more than 6 months although the said ground had arisen after the institution of the suit. This Court affirmed the order allowing the amendment and dismissed the revision petition. The present is a reverse case in which the subordinate Court has refused to allow the amendment of the plaint in similar circumstances and the aforesaid decision is clearly applicable. 9. In Bhura v. Bahadur Singh (supra), a learned Single Judge of this Court has observed that the averments regarding denial of title of the plaintiff contained in the written statement, as a result of which the tenant incurred the disability provided under Section 13(1)(f) of the Act can be taken into consideration in the suit itself and in that context it has been observed : "It will lead to unnecessary multiplicity of legal proceedings if the plaintiff would be obliged to file second suit for ejectment on the ground of denial of title by the tenants and not allowed to avail of that plea in the suit in which written statement is filed specially when it has been pleaded in the plaint that defendants have renounced their character." 10. It is true that in the present case in the plaint, there is no plea about the respondent having renounced the character of petitioner. But in my view that does not make any difference in as much as the amendment of the plaint is sought only for the purposes of addicting the said plea. 11. In the light of the aforesaid decisions of this Court the order of the Munsif disallowing the amendment in the plaint cannot be sustained. 12. The result is that revision petition is allowed and the order of the Munsif City Jodhpur dated 14th December, 1977 is set aside and the Munsif City, Jodhpur, is directed to dispose of the application for amendment of the plaint filed by the petitioner in accordance with law. There will be no order as to costs in this revision petition. *******