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1981 DIGILAW 67 (PAT)

Sidharthan Chit Fund v. Anisur Rahman

1981-03-24

SATYESHWAR ROY

body1981
Judgment 1. The defendant in this application has challenged the legality of the order dated 5.08.1980, passed by the Additional Subordinate Judge, Ranchi, rejecting the prayer of the petitioner to allow it to amend the written statement. 2. A suit was filed by the plaintiff-opposite party for eviction of the petitioner from a building described in the plaint. The suit for eviction was filed on the ground that the period limited by the deed of lease dated 15.08.1973, has expired by efflux of time and that the petitioner has stopped paying rent from 15.10.1977. The petitioner filed written statement contesting the claim for ejectment. It was contended by the petitioner, inter alia, that as the deed of lease was not registered the opposite party was not entitled to get any benefit under the same. It was also asserted that there was no default in paying the rent; rather the petitioner paid the rent in excess to the opposite party which he was entitled to adjust against the future rent. On 4.08.1980, an application was filed on behalf of the petitioner for amendment of the written statement. It prayed for insertion of two paragraphs, that is, paragraph 10 (a) and paragraph 10(b). The reason why the facts stated in paragraph 10 (a) and 10 (b) could not be stated in the original written statement was that the petitioner came to know about those facts after filing of the written statement. A rejoinder was filed to that application by the opposite party. The court below by the impugned order rejected the prayer of the petitioner. On 8-9-80, when this Civil Revision application was listed for admission, the opposite party who had put in appearance in this case was also heard. After hearing counsel appearing on behalf of the parties, it was ordered that this civil revision application will be heard, with regard to the prayer of the petitioner for inserting paragraph 10 (a) in the written statement by way of amendment. In this case, therefore, I will deal with regard to paragraph 10 (a) sought to be introduced in the written statement. 3. Mr. Debi Prasad learned counsel appearing for the petitioner submitted that the court below has failed to exercise his jurisdiction in rejecting the prayer of the petitioner. In this case, therefore, I will deal with regard to paragraph 10 (a) sought to be introduced in the written statement. 3. Mr. Debi Prasad learned counsel appearing for the petitioner submitted that the court below has failed to exercise his jurisdiction in rejecting the prayer of the petitioner. It appears from the impugned order that the amendment was refused by the court below as the petitioner has admitted the relationship of landlord and tenant between the opposite party and itself, and, therefore, the petitioner has no right to challenge the title of the opposite party. It was submitted by Mr. Debi Prasad that the petitioner was entitled to take inconsistent defence in order to unsuit the opposite party. He also contended that since the petitioner had no knowledge about the transfer of the suit property made by the opposite party to his wife, when the written statement was filed, therefore, the effect of transfer with regard to the relief prayed by the opposite party in the suit could not be pleaded. He urged that the court below should take notice of subsequent events i.e. the events which happened after the filing of the suit and the court below ought to have allowed the petitioner to amend the written statement. Mr. Debi Prasad also submitted that S.116 of the Evidence Act was not a bar for the petitioner to state that no decree in favour of the opposite party could be passed as he has transferred his title in the suit property to another person. In support of this proposition he relied upon the cases of Shikarchand Jain V/s. Digamber Jain Praband Karini Sabha, AIR 1974 SC 1178 , Sukumar Chatterjee V/s. Kiran Chandra Mitter, AIR 1964 Cal 439 , and Khalil Sufi V/s. Aziz Bhat, AIR 1960 J&K 132 . Mr. N.K. Prasad learned counsel for the opposite party submitted that in the written statement the petitioner has not denied the relationship of landlord and tenant. According to him the only defence is that no decree can be passed on the basis of an unregistered deed of lease. He urged that by the amendment the petitioner cannot be allowed to deprive the opposite party from the admission made by it in the written statement. In support of his contention he relied upon the case of Modi Spinning and Weaving Mills Co. He urged that by the amendment the petitioner cannot be allowed to deprive the opposite party from the admission made by it in the written statement. In support of his contention he relied upon the case of Modi Spinning and Weaving Mills Co. Ltd. V/s. M/s. Ladha Ram and Co., AIR 1977 SC 680 . Mr. N.K. Prasad further submitted that the opposite party has transferred his interest to his wife in respect of the ground floor of the building and not in respect of the first floor in which the suit property is situate. 4. In the case of Shikharchand Jain V/s. Digamber Jain Praband Karini Sabha (supra), it was held by the Supreme Court that ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation or (3) to do complete justice between the parties. Therefore, there cannot be any dispute of the legal position that it is open to a court to take notice of events which have happened after the institution of the suit in order to give relief appropriate under the changed circumstances, or in order to shorten the litigation or in order to do justice between the parties. In the case of Sukumar Chatterjee V/s. Kiran Chandra Mitter (supra), it was held that if an amendment of the pleading is necessary for the purpose of determining real question between the parties in controversy, prayer for amendment cannot be refused. In the case of Khalil Sufi V/s. Aziz Bhat, AIR 1960 J&K 132 , it was held that Sec.116 of the Evidence Act precludes a tenant from denying his landlords title at the beginning of the tenancy and not at any subsequent point of time. In the case of Khalil Sufi V/s. Aziz Bhat, AIR 1960 J&K 132 , it was held that Sec.116 of the Evidence Act precludes a tenant from denying his landlords title at the beginning of the tenancy and not at any subsequent point of time. It was further held that where on account of happening of subsequent events the landlord comes to be deprived of his title it will be open to the tenant to plead the subsequent loss of title on the part of landlord and Sec.116 does not bar such a plea. When the attention of Mr. Debi Prasad was drawn to the case of Jaikaran Singh V/s. Sita Ram Agarwall, AIR 1974 Pat 364 , he submitted that in view of the decision in the case of Shikharchand Jain V/s. Digamber Jain Praband Karini Sabha, AIR 1974 SC 1178 , this decision cannot be held to be good law. I will deal with this later. In the case of Sukumar Chatterjee V/s. Kiran Chandra Mitter, AIR 1964 Cal 439 , it appears that the defence of the tenant in their suit for ejectment was that there was an agreement for sale between Sarajubala (transferor of plaintiff of that suit) and himself (tenant) and that the plaintiff had purchased from Sarajubala with notice of the prior agreement with him. The defence, therefore, was that the plaintiff had acquired no title. The defendant prayed for allowing further amendment of the written statement and stated that he has come to know that Sarajubala who had claimed her title to the superior interest under a will left by the owner of the property was only a residuary legatee under the will and that the administration of that will not having been completed by the date of the alleged sale to the plaintiff, plaintiff could not acquire title to the property. The Calcutta High Court on these facts held that the defence of the tenant defendant was consistent inasmuch as in the original written statement he has denied the title of the plaintiff and by the amendment he is entitled to introduce a fact to fortify that assertion. In the case in hand, I have already noticed that the petitioner has not in the written statement denied the relationship of landlord and tenant. The decision of the Calcutta High Court has no application. 5. In the case in hand, I have already noticed that the petitioner has not in the written statement denied the relationship of landlord and tenant. The decision of the Calcutta High Court has no application. 5. It is true, that the petitioner has asserted that he had no knowledge of the transfer of the suit property by the opposite party to his wife when he filed the written statement. The opposite party has denied the fact of transfer. However, I am not concerned in this application about the correctness or otherwise of the factual assertions made on behalf of the parties. But even assuming that there has been a transfer of the suit property after it was let out by the opposite party to the petitioner, whether in view of the decision of the Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. V/s. M/s. Ladha Ram and Co., AIR 1977 SC 680 and in the case of Jaikaran Singh V/s. Sita Ram Agrawall, AIR 1974 Pat 364 , the petitioner should be allowed to amend the written statement. The substance of the amendment prayed for by the petitioner is that in view of the transfer of the suit property by the opposite party to his wife no decree can now be passed in his favour for the ejectment of the petitioner. Mr. N.K. Prasad submitted that amendment amounts to denial of admission already made by the petitioner in his written statement-admission that the opposite party is the landlord. And this the petitioner cannot be allowed to do in view of the decision of the Supreme Court in the case of Modi Spinning and Weaving Mills Co. In my opinion that decision has no application. What the petitioner now wants to say is that because of changed circumstances no decree can now be passed in favour of opposite party. 6. The question is even if the opposite party has transferred his interest in the suit property, which fact he does not admit, can the petitioner be permitted to introduce para 10 (a), and has the Court below failed to exercise jurisdiction vested in it under Order 6, Rule 17 of the Code of Civil Procedure by refusing the amendment? According to Mr. According to Mr. Debi Prasad, in view of the decision in the case of Khalil Sufi V/s. Aziz Bhat, AIR 1960 J&K 132 , the petitioner can deny the title of the opposite party as this denial is being made at a subsequent point of time, that is subsequent to the creation of the tenancy and therefore, the petitioner is not precluded from doing so under Sec.116 of the Evidence Act. In view of the decision of this Court, the decision of Khalil Sufi case cannot be accepted as correct. In the case of Jaikaran Singh V/s. Sita Ram Agarwall, AIR 1974 Pat 364 , a Division Bench of this Court was required to decide whether a tenant can deny the title of his landlord and refuse to deliver the possession to him, even if it is found that the landlord has lost his right subsequent to creation of the tenancy. It was held that even if Sec.116 of the Evidence Act is not strictly applicable, yet the principle of estoppel by entry into possession can be applied in such a case. The exceptions to this rule are : (i) where the plaintiff or the defendant does not seek to evict or to defend his title as a landlord on the strength of his tenancy but on the strength of his title and the erstwhile tenant having acquired an indefeasible right in himself is opposing the stand on the strength of his title in himself e.g. as a vendee (ii) Where the tenant has been evicted by a person holding a title paramount; and (iii) Where under a threat or compulsion of being evicted by the true owner or by a person claiming better title than the landlord, the lessee attorns to such person with notice to his original lessor. But Mr. Debi Prasad submitted that in view of Shikharchand Jain ( AIR 1974 SC 1178 ) (supra) that decision of this Court is no longer a good law. In my opinion the submission has no merit. The law laid down in Shikharchand Jain has no application to the present case. The Supreme Court was not dealing with the effect of Sec.116 of the Evidence Act or the principles of estoppel by entry into possession on a lessee. 7. In my opinion the submission has no merit. The law laid down in Shikharchand Jain has no application to the present case. The Supreme Court was not dealing with the effect of Sec.116 of the Evidence Act or the principles of estoppel by entry into possession on a lessee. 7. For deciding whether amendment of pleadings should be allowed it is to be seen whether it is necessary for determining the real question in controversy between the parties. There is no controversy that petitioner was inducted as a tenant in the suit premises by the opposite party; therefore, there is no controversy between the parties that the opposite party was landlord when the petitioner was inducted. Even if the assertion that the opposite party has transferred the suit property to his wife after the creation of the tenancy, in view of the Division Bench decision of this Court in the case of Jaikaran Singh, it must be held that the Court cannot refuse the relief to the opposite party if he can prove the other fact alleged by him in the plaint. That being the position, in my opinion, the fact sought to be introduced by way of amendment in the written statement is not necessary for the purpose of determining the real question in controversy between the parties. The Court below has not failed to exercise its jurisdiction, as urged by Mr. Debi Prasad. There is no reason to interfere with the order of the Court below. 8. In the result, the application is dismissed, but without costs.