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1998 DIGILAW 501 (RAJ)

LR’s of Abdul Aziz v. LR’s of Shri Modmal

1998-04-06

P.C.JAIN

body1998
JUDGMENT 1. - The plaintiff - petitioner has filed this revision petition under Section 115 CPC against the order dated 7.3.1996 passed by the learned Additional Civil Judge (Jr.Div.) No. 6, Jodhpur in civil original suit No. 548/93 whereby the learned Additional Cavil Judg,a dismissed the application of the plaintiff-petitioner filed under Order 6, Rule 17 CPC. 2. The plaintiff Abdul Aziz filed a suit for eviction against Shri Modmal on 20.1.1976. The plaintiff, inter alia, sought eviction on the ground that he required the suit shop for the reasonable and bona fide necessity of his sons Abdul Rahoof and Abdul Tuber for running a business. It may be stated that during the pendency of the suit, the plaintiff as well as the defendant died and legal representatives of both the parties were taken on record. The plaintiffs-petitioners has also averred that after the death of the plaintiff there was partition between various legal heirs of the plaintiff and the 'suit shop came to the share of Abdul Hakim and Abdul Rahoof. However, Abdul Hakim executed a registered Relinquishment Deed in favour of Abdul Rahoof. Hence at present Abdul Rahoof is the owner of the suit shop. The subsequent event necessitated certain amendments in the pleading. The plaintiffs, therefore, moved an application under Order 6, Rule 17 CPC praying for permission to allow amendments as detailed in paras 7(a), 7(b) & 7(c) of the application. The important amendment sought by the plaintiffs was to the effect that now the suit shop is required reasonably and bona fide for the business of the wife and son of Abdul Rahoof. This amendment is contained in paras 7(b) & 7(c) of the application. 3. The application was contested by the defendants on the ground that the amendment sought was of substantial nature and if the proposed amendments were allowed, they would change the nature of the suit and the cause of action Which cannot be permitted as per principles governing the sanction of amendment. 4. The learned Additional Civil Judge heard both the parties and came to the conclusion that in the original plaint, the plaintiff pleaded the bona fide and reasonable necessity of the plaintiff himself. Now the plaintiffs wants the suit shop reasonably and bona fide for running the business of his wife and son. It is altogether a changed requirement. 4. The learned Additional Civil Judge heard both the parties and came to the conclusion that in the original plaint, the plaintiff pleaded the bona fide and reasonable necessity of the plaintiff himself. Now the plaintiffs wants the suit shop reasonably and bona fide for running the business of his wife and son. It is altogether a changed requirement. According to the learned Additional Civil Judge, the above amendment cannot be allowed because it would change the cause of action and nature of suit will also be changed. He was of opinion that the plaintiff could file a separate suit for ejectment against the defendants on the newly acquired ground namely, the reasonable and personal necessity of his son and wife. 5. I have heard Shri R.R. Nagori appearing on behalf of the petitioners and Shri A.L. Chopra appearing on behalf of the non-petitioners. 6. Shri Nagori has submitted that it is settled law that the Courts take into consideration the subsequent events and allow the affected party to amend his pleading which has been necessitated on account of such subsequent events. In the instant case, the plaintiff has narrated the events according to which now the suit shop has come to the share of Abdul Rahoof. The learned Additional Civil Judge was not right in commenting that by seeking the above amendment, the suit will be converted into a suit for title. The plaintiff is obliged to narrate the sequence of events which made him the owner of the suit shop as a result of devolution. It is necessary for the plaintiff to disclose the facts according to which he has become the landlord of the defendant. He also submitted that one of the objects of allowing the amendment of the pleading is to avoid multiplicity of proceedings. If the above amendment is not allowed, the plaintiff will be driven to necessity of filing a separate suit. As such the denial would result in the multiplicity of litigation. 7. Shri Chopra has supported the order of the learned Additional Civil Judge. He has submitted that the amendments sought by the plaintiff do not fall within the per-view of O. 6, Rule 17 CPC and the learned trial Court correctly exercised his jurisdiction in rejecting the above application. Shri Chopra has argued that initially the plaintiff required the suit shop for his own reasonable and bona fide necessity. He has submitted that the amendments sought by the plaintiff do not fall within the per-view of O. 6, Rule 17 CPC and the learned trial Court correctly exercised his jurisdiction in rejecting the above application. Shri Chopra has argued that initially the plaintiff required the suit shop for his own reasonable and bona fide necessity. Now with the change of circumstances and happening of the subsequent events, the plaintiff has pleaded the reasonable and bona fide necessity of his son and wife. Shri Chopra has argued that there is a change in the nature of the reasonable and bona fide necessity as pleaded by the plaintiff originally and now being pleaded by way of amendment. This would change the nature of suit. In this connection he has placed reliance on the case Wg. Comm. H.K. Lal v. Dr. Satish Chandra & Ors., 1996 WLC (Raj.) (UC) 3 . 8. I have considered the rival contentions. It is evident that initially plaintiff pleaded reasonable and bona fide necessity for himself or his two sons. Now the plaintiff is seeking reasonable and bona fide necessity as a ground of eviction in respect of his wife and his son. In my opinion this cannot be allowed. In Wg. Comm. H.K. Lal's case, this Court relying on Sheikh Jahangir v. Smt. S. Kaushalya Bai & Ors., 1987 (Supp.) SCC 630 held that when eviction is sought on ground of bona fide necessity and there was a sale of suit premises during pendency of the suit, the vendee seeking amendment in plaint taking ground of his own reasonable and bona fide necessity cannot be allowed. In such a case, the purchaser of the premises can file a separate suit. The principles laid down in the above case can also be invoked to the facts of the present case. In this case also there is a change in the ownership of the suit premises. Previously the plaintiff was owner. Now, after devolution, Abdul Rahoof has become the owner. There is also change in the nature of reasonable and bona fide necessity inasmuch previously the plaintiff required the suit shop for his sons. Now Abdul Rahoof wants the suit premises for the business of his wife and son. There is, therefore, a definite change in the nature of the reasonable and bona fide necessity. This cannot be allowed as has been held in the above case. Now Abdul Rahoof wants the suit premises for the business of his wife and son. There is, therefore, a definite change in the nature of the reasonable and bona fide necessity. This cannot be allowed as has been held in the above case. The plaintiff can, of course, file a separate suit on the basis of the reasonable and bona fide necessity as a ground of eviction against the defendant. It is no doubt correct that one of the objects of allowing amendment is to avoid multiplicity of proceedings but the amendment is to be refused when it tends to change the foundation of the suit and seeks to introduce the distinct cause of action. 9. For the above reasons, I do not find any substance in the revision petition and the same is hereby dismissed.Revision dismissed. *******