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1990 DIGILAW 36 (CAL)

Samar Kumar Sarkar v. Asit Kumar Sarkar

1990-01-24

Amulya Kumar Nandi

body1990
ORDER Plaintiffs filed T. S. no. 137 of 1984 on 4.4.84 in the 2nd Court of Munsif at Alipore for eviction of the defendant from the suit premises. on several grounds. They did not plea the ground of reasonable requirement for own use and occupation in the plaint as originally stood. 2. The mother of the plaintiff, purchased the property on 23.9.81. The suit for eviction was filed within three years from the date of purchase. The plaintiffs filed the amendment petition on 17.3.88 to and an additional ground for eviction, viz, reasonable requirement for own use and occupation. 3 The Court by impugned order no. 59 dated 1.7.88 had allowed the amendment. 4 Sub-section (3A) of s. 13 of the West Bengal Premises Tenancy Act hereinafter called the Act bars institution of a suit for eviction on the ground of reasonable requirement for own use and occupation within three years from the date of purchase. The instant suit was filed within three years without pleading the ground of reasonable requirement for own use and occupation. The ground was subsequently sought to be incorporated by amendment on 17.3.88. The amendment is sought for more than six years after the purchase of the property. It is contended on behalf of the petitioner that despite amendment long after three years since after purchase the mischief under sub-so (3A) of S. 13 of the Act shall be attracted. In this connection reliance has been placed upon the Bench decision in Sudha Mukherjee v. Sankar Chatterjee (86 CWN 841) which has been followed in a later decision in Inder Sengupta V. Provarant Chakrararti 188 CWN 379). 5. In Sudha Mukherjee's Case (ante) the learned Judges found that the amendment sought for in the case was not bona fide. The reason that struck the learned Judges was that the landlord stood in need of the disputed accommodation for her own use since before the institution of suit and sued for eviction on untenable grounds. While three years had passed amendment was sought for in order to circumvent the bar under sub-s. (3A) of S. 13. Thus this amendment was found to be mala fide. Two considerations very heavily weighed with the learned Judge; to disallow the amendment. They found that the landlady's requirement for her own use and occupation was there when suit was filed. Thus this amendment was found to be mala fide. Two considerations very heavily weighed with the learned Judge; to disallow the amendment. They found that the landlady's requirement for her own use and occupation was there when suit was filed. Suit was filed on untenable grounds and the bar under sub-s. 3A of s. 13 was sought to be circumvented by amendment of the plaint three years after purchase to incorporate the ground of reasonable requirement for her own use and occupation. Such circumvention was impermissible in law. Second consideration was that the amendment would relate back to the date of the institution of the suit. So if bar under sub-s. 3A of S. 13 of the Act would operate on that date amendment cannot be allowed. 6 Bar under S. 13 (3A) of the Act was intended to operate against the institution of suit for a particular period after purchases. Nevertheless it cannot prevent a second suit on a different cause of action. So in order to prevent multiplicity of proceeding and shorten litigation the amendment cannot be rejected. The argument on behalf of the landlady that the court will take notice of subsequent facts or events in order to shorten litigation and to do complete justice to the parties failed to carry the learned Judges. Their Lordships overruled the argument on the ground that the requirement of the landlady was not a subsequent event and that as a matter of fact she stood in need of the accommodation from the date of the suit. 7. But their Lordships did not question the theory propounded by the counsel for the landlady. By a long line of decisions the theory has crystalized into law. In Sikharchand Jain v. Digambar Jain Proband Karini Sabha ( AIR 1974 SC 1178 ) Supreme Court held that ordinarily a suit is tried in all its stages on the cause of action as it existed on the date of the 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 to do complete justice between the parties and shorten litigation, In similar tone Supreme Court held in M/s. M. Laxmi & Co. v. Dr. 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 to do complete justice between the parties and shorten litigation, In similar tone Supreme Court held in M/s. M. Laxmi & Co. v. Dr. Ananl R Desppande ( AIR 1973 SC 171 ) that the court can take notice of subsequent events to shorten litigation, to preserve rights of both parties and to sub-serve the ends of justice. It went further in Pasupuleti Venkateswarlu v. The Motor and General Traders ( AIR 1975 SC 1409 ) in opining that where during the pendency of a proceeding under Rent Control Legislation by the landlord for permission to event the tenants, a subsequent event in the facts of the case takes place which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in taking cognizance of the new development cannot be said to be wrong or illegal. 8. In the instant case, however, there is no change of came of action nor does it change the nature and character of the suit for eviction, In a suit for eviction the cause of action is the determination of tenancy by notice. Ground of eviction does not constitute a necessary part of cause of action. This view of mine finds, support in the decision in Jitendranath Dos v. Dr. Kalyan Kumar Banerjee ( AIR 1977 Cal 49 ), Prem Lal v Jadav Chand ( AIR 1979 Raj 44 ). 9. So addition of a ground for eviction developing during the pendency of a case by way of amendment of plaint is neither impermissible nor mala fide. In a number of cases such amendments were upheld. In Ayesha Khatoon v. Durga Sahaya ( Air 1977 Cal 108 ) and Tinceri Das v. Jamunabala Dasi AIR 1979 Cal 448) landlord sued for eviction on the ground of forfeiture of lease. During pendency of appeal the period of lease expired. Appellant prayed for amendment of plaint by claiming relief on the additional ground of expiry of lease. Amendment was allowed. Amendment of add the ground of reasonable requirement was allowed ina suit for eviction on the ground of default alone is Jitendranath Das v. Dr. During pendency of appeal the period of lease expired. Appellant prayed for amendment of plaint by claiming relief on the additional ground of expiry of lease. Amendment was allowed. Amendment of add the ground of reasonable requirement was allowed ina suit for eviction on the ground of default alone is Jitendranath Das v. Dr. Kalyan Kumar Banerjee ( Air 1977 Cal 49 ). Supreme Court while upholding the constitutional validity of the retrospectively of sub-s.3A of s.13 the Act allowed amendment in the peculiar facts in the case. 10. What comes out of these decisions is that the court will allow bona fide amendment of plaint in order to take notice of events occurring during the pendency of the suit. Such an amendment cannot and does not relate back to the date of the institution of the suit since that fact or event was absent at the time of the institution of the suit 11. In the instant case the property was purchased by the predecessor of the plaintiffs on 23.9.81. The plaintiffs filed this suit for eviction on different grounds on 4.4.84. In the petition for amendment filed on 17.3.88 the plaintiff have stated that the requirement for own use and occupation arises during the pendency of the case. It has been detained out in the petition as to how the requirement arose during the pendency of the case. Such an amendment, to my mind, is neither mala fide nor it relates back to the date of the institution of the suit. So this case does not come within the purview of the decision in Sudha Mukherjee's case (ante). 12. Mr. Bakshi submits that Inder Sengupta's case (88 CWN 379) lays down a blanket proposition that amendment cannot be allowed and this Single Bench is bound by the decision. The ratio of the decision applies in the particular facts of the case. In the instant case a different question comes up for consideration. Question is as to whether court will allow such amendment despite provision in s. 13 (3A) of the Act if requirement develops during pendency of the case, I have relied upon authorities to show that such amendment should be allowed. Sub-section 3A does not bar such amendment. Trial court has in its discretion rightly allowed the amendment. The order does not warrant interference. So I reject the revisional application. Sub-section 3A does not bar such amendment. Trial court has in its discretion rightly allowed the amendment. The order does not warrant interference. So I reject the revisional application. Let a copy of this order go down to the Court below forthwith. Application rejected.