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1991 DIGILAW 510 (PAT)

Azaz Ahmad v. Mohammad Shafi

1991-12-18

G.C.BHARUKA

body1991
Judgment G.C.Bharuka, J. 1. This revision application has been preferred, against the order dated 10-5-1991 passed by the learned 1st Addl. Munsif, Bettiah, in T.S. No. 100 of 1987 whereby he has allowed the amendment petition filed by the plaintiff. Defendent No. 1 is the petitioner before this Court. 2. The suit was filed for recovery of possession of the suit premises as also for recovery of charges for the period of occupation by the defendants. According to the plaintiffs, the defendants was temporarily allowed to occupy the suit premises as a licence for few days considering the immediate need of the defendant but the defendant is illegally and forcibly retaining the suit premises in his possession. 3. On the other hands, the defendants in their written statement have asserted that the defendant No. 1 was inducted by the plaintiffs into the suit premises in July, 1984, as a tenant at the mutually agreed rent of Rs. 70 per month and since then he is regularly paying the rent. Keeping in view these rival contentions, issues were framed in the suit. Issues No. 3, 4, 5 and 6 run as follows:- - (3) Whether the Defendant No. 1 is in permissive possession of the suit premises since December, 85 or is tenant of the plaintiff since July, 1984, @ Rs. 70 monthly rental. (4) Whether the plaintiff is entitled to a decree for recovery of possession after evicting defendants from the suit premises through the processes of the Court. (5) Whether the .plaintiff is entitled to get a decree for damages from defendants @ Rs. 110 monthly since December, 1985, till the date of recovery of possession. (6) Whether the Defendant No. 1 had ever paid any rent of the suit house to the plaintiff at the rate of Rs. 70 per month as alleged by the defendant No. 1. It appears from the certified copy of the order-sheet produced during the course of hearing of the present application that after the conclusion of the hearing of the suit 6-1-1990 was fixed for judgment. 4. But before it could be delivered, the plaintiff filed an application that some more argument is required to be advanced in this case and, therefore, the case should be again taken up for hearing. Considering this prayer, the case was again posted for hearing on a subsequent date. 4. But before it could be delivered, the plaintiff filed an application that some more argument is required to be advanced in this case and, therefore, the case should be again taken up for hearing. Considering this prayer, the case was again posted for hearing on a subsequent date. The defendants did not object to this prayer. On 23-8-1990 the matter was again heard in part. Then on 24-8-1990 and on 27-8-1990 at the request of the learned counsels for both the parties, the case was adjourned. On 28-8-1990 the plaintiff filed an amendment petition supported by an affidavit. After hearing both the parties, by the impugned order dated 10-5-1991 the amendment sought for was allowed. 5. From the amendment petition, a copy of which has been annexed with the revision application, it transpires that amendment was found necessary keeping in view the stand taken by the defendant that he was in possession of the suit premises as a tenant. Accordingly the amendment sought for in relief portion was in the following terms: If the Court finds that the defendant No. 1 is not the licence of the plaintiff with respect of the schedule No. 1 suit premises then in such circumstances a decree also be passed in favour of this plaintiff against the defendants that defendants are defaulter of non-payment of monthly rent since two consecutive months since February, 1986, and the tenancy terminated since then and the defendants are liable to be evicted and the plaintiff is entitled to get delivery of possession over the same after evicting the defendants through the process of the Court. 6. It has been submitted on behalf of the learned Counsel for the petitioner that the present amendment should not have been allowed by the Court below, at the fag end of the hearing of the case since it will cause great prejudice to the defendants. It was also submitted that this amendment, as allowed, will change the very nature of the suit. In my opinion, none of the two pleas are tenable because the amendment as sought for is consistent with the factual and legal stand taken by the defendants in their written statement. As a matter of fact, the issues as framed in the suit, are sufficient enough to adjudicate the right of the parties in terms of the amended relief. In my opinion, none of the two pleas are tenable because the amendment as sought for is consistent with the factual and legal stand taken by the defendants in their written statement. As a matter of fact, the issues as framed in the suit, are sufficient enough to adjudicate the right of the parties in terms of the amended relief. Sri Dwivedi has further submitted that in view of the judgment in the case of Arjun Singh V/s. Mohindra Kumar and Ors. -- (Para 19 at P. 1004), where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX, Rule 1 permits judgment to be delivered after an interval after the hearing is completed Relying on the judgment. Sri Dwivedi submits that once the Court below reserved the judgment then he ceased to have any jurisdiction to grant any opportunity to the contesting parties to again revert to the hearing of the suit. Therefore, according to him it was not within the jurisdiction of the trial Court to entertain the amendment petition. In my opinion, the submission of the learned Counsel cannot be accepted for the simple reason that till before the judgment is delivered the Court always has power to pass appropriate orders including granting an opportunity of further hearing to the parties if it is found just and equitable. Secondly, in this case in presence of both the parties the hearing of the case was reopened and on several dates both the parties participated. It was only after the defendants failed to persuade the Court in not allowing the amendment, they have raised a plea of jurisdiction as stated above. In my opinion, now it is not permissible on the part of the defendants to question the validity of the order dated 6-1-1990 by which the hearing of the case was reopened since that order has attained its finality. It is wrong to say that this order was ab initio void and a nullity and, therefore, it is amenable to challenge any stage and in any proceeding. 7. For all this reasons, in my opinion, the present revision application is devoid of any merit and is, accordingly dismissed. However, there shall be no order as to costs.