D. B. DUTTA,J. ( 1 ) AN order allowing an amendment of plaint in Title Suit No. 130 of 1982 by the Tenth court of civil Judge, Senior Division, Alipore forms the sub-ject matter of challenge in the present revisional application under section 115 of CPC. ( 2 ) THE plaintiff opposite party filed the suit for recovery of possession of a premises together with plants and machineries described in the plaint schedule and also for arrears of rent and damages. ( 3 ) THE plaintiff's case in substance was as follows. The plaintiff was a land-lord in respect of a piece of land measuring more or less 5 bighas with three corrugated iron structures at 63, Belgachia Road where he erected several machinery for running a saw Mill. Two big structures standing on a portion of the said land were partition in two halves which stands allotted to two tenants. By an agreement entered into by and between the plaintiff and defendants on 3rd November, 1970 the plaintiff let out to the defendants on rent and hire some of those structures and machinery at a rent cum hiring charges of Rs. 500/- per month from November, 1970 which was subsequently raised to Rs. 600/- per month from October, 1971 with provisions for further increase. Under the terms and conditions of that agreement, the defendants ware to keep the machines in good running conditions and hand over their possession in such condition to the plaintiff upon the termination of the agreement. The defendants are not to make any additions or alterations of the existing structures without the consent of the plaintiff. The rate of rent was subsequently increased to Rs. 700/- by mutual consent. Without the knowledge and consent of the plaintiff the defendants affixed some other machineries in violation of the terms of the contract which caused damages to the plaintiff's properties. Some time in April, 1981, the plaintiff pointed out to the defendants that due to want of proper repair and maintenance the structures, plant and machinery leased out to the defendants were fast deteriorating for which the plaintiff proposed to increase the rate of rent to Rs. 3000/- per month. The dendants accepted the proposal and agreed to the enhancement of rent to Rs. 3000/- per month. The dendants accepted the proposal and agreed to the enhancement of rent to Rs. 3000/- per month from April, 1982 onwards subject to the condition that from May, 1981 to March, 1982 it would be fixed at Rs. 1,000/- per month. But the defendants had defaulted in payment of rent at the agreed rates from January, 1982 to November, 1982. The plaintiff reasonably requires the possession of the land and structures the godown and the machinery and plants let out to the defendants for the purpose of carrying on business by himself and/or by his son who is now sitting idle. The defendants having violated the terms of the agreement in many respects, the plaintiff by lawyer's notice dated 17th May, 1982 forfeited the defendants' rights and interests in the premises and determined the defendant's tenancy on the expiry of November, 1982 giving them notice to quit and deliver vacant and peaceful possession of the premises on the expiry of the month of November, 1982 but to no effect. The defendants have caused damages to the plaintiff's properties such as demolition of the pucca boundary wall, pucca godown, corrugated iron structures, iron railing etc. Moreover, in violation of the terms and conditions of the aforesaid agreement the defendants were using and occupying for the purpose of trade and business some vacant land which was not meant for being used or intended to be allowed to be used gratutiously. Such vacant land would cover an area of 15574 sq. ft. for wrongful occupation of which the plaintiff has been suffering damages at the rate of Rs. 15,574 per month. The damages so suffered upto 7th July, 1986 would amount to Rs. 2,89,482/ -. ( 4 ) THE defendants on filing written statement admitted the plaintiff to be their landlord. It is alleged that the land and structures belonged to the plaintiff's father who let out them along with some machines to the defendants and subsequently the plaintiff's father transferred his properties to the plaintiff and made a fresh letting in favour of the defendants in the name of the plaintiff. The defendants also admitted the execution of the agreement dated 3rd. The defendants also admitted the execution of the agreement dated 3rd. November, 1970 but alleged that the machines which were initially let out by the plaintiff's father were old and were being used by the plaintiff's father for a long time in connexion with his business prior to the letting out in favour of the defendants. The defendants brought better machines by purchase and installed them in the factory with the consent of the plaintiff's father to whom the machines which became unworkable were returned by the defendants. The defendants renovated the structures at heavy expenses. The rate of rent settled with the plaintiff was Rs. 500/- per month from November, 1970 to September, 1971 and thereafter at the rate of Rs. 550/- per month without any provision for any further increase as alleged by the plaintiff. Whatever the machines are now in possession of the defendants belong to the defendants and the plaintiffs have no other machines of his own. The machines taken on hire were all given back to the plaintiff's father. The plea of reasonable requirement for the possession of the land and structures by the plaintiff was denied. The allegation of further increase in the rate of rent had also been denied by the defendants. It was also alleged that the plaintiff arbitrarily refused to accept the rent tendered by the defendants as a result of which some rents could not be paid in time for which the defendants were not to blame. They have deposited rents in court, filed application under section 17 (2) of the West Bengal Premises Tenancy Act and have been depositing rents under section 17 (1 ). The plaintiff is not entitled to a decree and the suit is liable to be dismissed. ( 5 ) THE defendants subsequently filed an additional written statement contending, inter alia, that the vacant land as referred to in the plaint was also comprised within the defendants' tenancy and that they have acquired tenancy right in respect of the said vacant land by grant as well as by prescription. ( 6 ) THE trial court by its order No. 16 dated 20. 6. 83 rejected the petition under section 17 (2) of the West Bengal Premises Tenancy Act and by order No. 96 dated 19. 1. ( 6 ) THE trial court by its order No. 16 dated 20. 6. 83 rejected the petition under section 17 (2) of the West Bengal Premises Tenancy Act and by order No. 96 dated 19. 1. 89 held that the West Bengal Premises Tenancy Act was not applicable to the suit and since neither party went on to the higher court against such finding of the trial court, it took it for granted that the suit was not to be governed by the provisions of the West Bengal Premises Tenancy Act and proceeded to decide the suit. After full trial, the trial court by its judgment dated 27th March, 1991 decreed the suit in part only for the recovery of the plant and machinery as referred to in the plaint schedule. By the decree the defendants were given certain time to deliver up the plants and machineries to the plaintiff failing which the plaintiff was given the option of having the decree executed through court. The decree also provided that if the said plant and machinery were not available, the plaintiff would get a decree for recovery of a sum of Rs. 30,000/- in place of the plant and machinery. The plaintiff was also awarded a decree for a sum of Rs. 3600/- towards arrear rent. ( 7 ) AGAINST this judgment the plaintiff preferred an appeal being FA 39 of 1992 before this court and a Division Bench of this court by its judgment dated 9. 3. 98 set aside the judgment and decree passed by the trial court as also the order that was passed by the trial court under section 17 (2) of the West Bengal Premises Tenancy Act. The appellate court was of the view that the trial court was not at all justified in coming to a conclusion only on the basis of the agreement dated 3. 11. 70 at the interlocutory satge that the defendants were tenants only in respect of the plants and machinery and not the land and structures, without considering the other evidence already on record. 11. 70 at the interlocutory satge that the defendants were tenants only in respect of the plants and machinery and not the land and structures, without considering the other evidence already on record. The finding of the trial court under section 17 (2) cannot be considered to be conclusive and the trial court was bound to decide the issue at the time of disposal of the suit upon consideration of all the materials on record and since the approach of the trial court was considered illegal, the appellate court after setting aside the judgment of the trial court remitted the case back for re-hearing on the evidence already adduced by the parties and gave the liberty to the parties to adduce further evidence in support of their respective cases and if necessary, also to amend their pleadings before the trial court. ( 8 ) PURSUANT to this liberty given by the Division Bench of this court in FA 39 of 1992, after the case was sent back on remand, the plaintiff came forward on 26. 10. 98 before the trial court with an application for amendments of the plaint under order 6 Rule 17 of CPC. By the proposed amendments the plaintiff has sought for the amendments in the cause title of the plaint, addition of some sub-paragraphs in paragraphs 1 and 3 of the plaint, deletion of certain paragraphs such as paragraphs 9, 13, 14, 18 and 19 and substitution of new paragraphs in place of paragraphs 9, 13, 14 some formal amendment in paragraph 17 and substitution of new prayers in place of the old prayers in the plaint that follow the schedule of the property appearing in original paragraph 19. ( 9 ) SHORTLY after filing of the above application for amendment, the plaintiff filed another application for amendment of the plaint on 9. 11. 98 whereby he sought for insertion of a sub-paragraph under the proposed new paragraph No. 9. ( 10 ) THE defendants opposed both the applications for amendment by filing two separate written objections contending, inter alia, that the proposed amendments would change the entire nature and character of the suit by introducing completely new and inconsistent story and that they are not at all necessary for deciding the real controversy between the parties. ( 10 ) THE defendants opposed both the applications for amendment by filing two separate written objections contending, inter alia, that the proposed amendments would change the entire nature and character of the suit by introducing completely new and inconsistent story and that they are not at all necessary for deciding the real controversy between the parties. ( 11 ) UPON consideration of the nature and character of the proposed amendments of the plaint and the objections raised on behalf of the defendants and also upon consideration of the judgment of the Division Bench of this court in FA 39 of 1992 granting the liberty to amend the pleadings, the learned trial Judge was of the view that the amendments prayed for would not change the nature and character of the suit and accordingly by the impugned order No. 155 dated 10. 2. 99. allowed the amendments with cost of Rs. 200/- ( 12 ) IN assailing the impugned order, Mr. Bagchi, the learned senior counsel appearing for the defendant petitoners, made the following submissions. It is true that the appellate court granted a liberty to both the parties to amend their pleadings. But such liberty cannot be construed as one to amend anything and everything of the pleadings by either of the parties. It is contended by Mr. Bagchi that by the judgment liberty was given to pray for amendment only if such amendment is necessary. The liberty, according to Mr. Bagchi, was a qualified liberty and not an unbriddled one entitling the plaintiff to introduce even a new case by way of amendment to change the entire nature and character of the suit. The amendments sought for, according to Mr. Bagchi, cannot be considered to be necessary for deciding the real controversy between the parties. It is submitted that during the trial the court below proceeded on the footing that the suit was one governed by the Transfer of Property Act and not by the West Bengal Premises Tenancy Act and on such basis the trial court was pleased to reject the defendant's application under section 17 (2 ). By the proposed amendments, it is argued by Mr. Bagchi that the suit is for the first time being converted into one under the West Bengal Bengal Premises Tenancy Act and if such an amendment is allowed at this stage it would cause injustice to the petitioners. Mr. By the proposed amendments, it is argued by Mr. Bagchi that the suit is for the first time being converted into one under the West Bengal Bengal Premises Tenancy Act and if such an amendment is allowed at this stage it would cause injustice to the petitioners. Mr. Bagchi draws my attention to the notice dated 17th May, 1982 which was addressed to the defendants by the advocate of the plaintiff and submits that the description of the subject in the notice makes it clear that it related to land together with machineries and plants embodied thereon and not to any structure. The term "premises" within the meaning of section 2 (f) of the West Bengal Premises Tenancy Act cannot constitute a mere piece of land without any building thereon. Since the notice does not refer to any building, Mr. Bagchi contends that the suit could not fall within the purview of West Bengal Premises Tenancy Act and as such it is contended that the proposed amendment is not bona fide. Mr. Bagchi argued that the plaintiff must elect as to whether he would like to pursue the suit as one under the Transfer of Property Act or one under the West Bengal Premises Tenancy Act and that he cannot be permitted to proceed with the suit treating it as one under West Bengal Premises Tenancy Act as also under the Transfer of Porpoerty Act. The effect of the proposed amendment would, according to Mr. Bagchi, be to allow the plaintiff to sue for eviction under the Transfer of Property Act and in case such relief is not available then to fall back upon an alternative remedy under the West Bengal Premises Tenancy Act. For all these reasons, it is submitted by Mr. Bagchi that such an amendment ought not to have been allowed by the learned trial Judge. Reliance has been placed upon the decisions reported in AIR 1968 Supreme Court 1355 : Prem Raj v. The K. L. F. H. and Construction (Private) Ltd. , AIR 1965 Supreme Court 1008: The Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1973 Supreme Court 2110 : Phool Rani v. Naubat Rai and AIR 1998 Supreme Court 618 : Heeralal v. Kalyan Mal. ( 13 ) ON behalf of the plaintiff opposite party, it was submitted that by the proposed amendment no new or inconsistent case was being made out by the plaintiff and that even if it be asumed that by the proposed amendment an admission made by the plaintiff is now was ought to be withdrawn or explained away, that cannot be a ground for refusal to allow such an amendment. Reference was made by Mr. P. K. Pahari, the learned counsel appearing for the opposite party to 1984 (supp) Supreme Court Cases 594 : Panchdeo Narain Srivastava v. Km. Jyoti Sahay. ( 14 ) THE mere fact that the trial court initially rejected the defendant-petitioner's application under section 17 (2) at an interlocutary stage on a finding that the provisions of the West Bengal Premises Tenancy Act were not applicable to the facts and circumstances of the present suit cannot estop any of the parties either the plaintiff or the defendants to urge that the present suit would be governed by the provisions of West Bengal Premises Tenancy Act because the said finding of the trial court was not conclusive and has already been set aside by the appellate court's judgment. The defendants have filed a cross objection against the original judgment passed by the trial court. The said finding of the trial court having been set aside, the defendants' application under section 17 (2) has since revived and is required to be disposed of by the trial court afresh after the remand in accordance with law. ( 15 ) IN AIR 1968 SC 1355 , the question involved was whether a plaintiff, suing for a declaration that certain contract against him was void and inoperative having been obtained by undue influence, can in the same suit, in the alternative ask for the relief of specific performance of the same contract. The Supreme Court answered that question in the negative and in so doing, took into account in particular, the provisions of sections 37 and 35 of the Specific Relief Act. Section 37 provides that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the coverse is not provided and it is therefore not open to the plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. Section 37 provides that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the coverse is not provided and it is therefore not open to the plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. Section 35 specifically states the principles upon which the rescission of the contract may be adjudged and there is no provision in the section or any other section of the Specific Relief Act that the plaintiff suing for rescission of the agreement can sue in the alternative for specific performance. The omission, according to the Supreme Court, was deliberate and the intention of the Act is that no such alternative prayer was open to the plaintiff. In a suit for specific performance of the contract, the plaintiff was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing to perform the contract, on its part and failure to make good that averment would entail dismissal of a suit. When a plaintiff alleges that the agreement is not binding upon him he sues at law for breach which goes to the root in the contract and he can, therefore, be deemed to have elected to treat the contract at an end and him-self as discharged from its obligations and by such election he had precluded himself even from making the averment regarding his continuous readiness and willingness proof of which is essential to the success of his suit. The question of election between the two reliefs would arise only if it could be shown that in respect of specific performance he had a cause of action and since in the Supreme Court case the appellant has not made out any cause of action so far as the relief of specific performance is concerned and he is not entitled to be put to election in regard to the two alternative reliefs. The situation here is completely different. The present suit is not a suit for specific performance of contract or for rescission of a contract. It is a suit for eviction of a tenant. The notice referred to above is clearly described as one under section 13 (6) of the West Bengal Premises Tenancy Act. The situation here is completely different. The present suit is not a suit for specific performance of contract or for rescission of a contract. It is a suit for eviction of a tenant. The notice referred to above is clearly described as one under section 13 (6) of the West Bengal Premises Tenancy Act. On a scrutiny of the original plaint it appears that it did disclose a cause of action for eviction under the West Bengal Premises Tenancy Act. Even in the original paragraph No. 8 of the plaint, the ground of requirement within the meaning of section 13 (i) (ii) of the West Bengal Premises Tenancy Act appears to have been substantially pleaded. The said ground is not sought to be elaborated by the second amendment petition dated 9. 11. 98. If the notice to quit dated 17th May, 1982 is finally adjudicated by the trial court as a notice to quit only the land and not any part of the building within the meaning of the 'premises' under the West Bengal Premises Tenancy Act, the plaintiff would not be entitled to get any relief under the provisions of the said Act and in that case there is nothing in law to debar the plaintiff from banking upon the provisions of the Transfer of Property Act for evicting of the defendants from the land in case the said land is comprised within a tenancy. The learned counsel for the plaintiff opposite party refers to paragraph 3 of the said notice wherein violation of the terms of the agreement in respect of serveral clauses of the agreement such as clauses (1), (5), (6), (7), (8), (12) and (14) has been complained of and submits that the said paragraph is to be read along with the said clauses of the agreement particularly the clause (5) of the agreement which on the fact of it is relatable to building. Now, this submission touches the merits of the case which are not required to be decided at the time of deciding the question whether an amendment of pleading should be allowed or not. Having regard to the entire materials on record, this much can be safely said that there is no room for doubt that the proposed amendment is not mala fide and is necessary for the purpose of deciding the real controversy between the parties. Having regard to the entire materials on record, this much can be safely said that there is no room for doubt that the proposed amendment is not mala fide and is necessary for the purpose of deciding the real controversy between the parties. I have already observed that in view of the facts and situations obtaining in the present case and the Supreme Court case reported in AIR 1968 Supreme Court 1355, the question of election would be of no relevance here. The principle of bar to claim alternative relief as contemplated in the said Supreme Court case is not at all applicable here. In AIR 1965 Supreme Court 1008, by the amendment the plaintiffs sought to make out a case for fraud for which there was not the slightest basis in the plaint as it originally stood and as such the Supreme Court was of the view that the amendment should not have been allowed. Applying the test laid down by this decision we must say that no new case is being made out by the proposed amendment for which there is not even the slightest basis in the original plaint. In AIR 1973 Supreme Court 2110, the Supreme Court did not permit an alteration of the pleadings on the ground that the said alternation was no fundamental as to make the lis assume a complexion wholly beyond the compass of the original cause of action. The Supreme Court was of the view that such an alteration would fall beyond the scope of amendment of pleadings permissible under a most liberal interpretation of Order 6 Rule 17 of the CPC. In our case, the alteration proposed by the amendment is really not so fundamental as to justify its refusal. The decision in 1984 (supp) Supreme Court Cases 594 which has been cited on behalf of the plaintiff opposite party appears to have been referred to in AIR 1998 SC 618 and the Supreme Court held that by dropping the word 'uterine' by amendment of the plaint, the main case of the plaintiff did not get changed as the plaintiff wanted to submit that the defendant was his brother and whether uterine brother or real brother was a question of degree and as such the deletion of word 'uterine' was not found to be displacing the earlier case of the plaintiff. In AIR 1998 Supreme Court 618, the Supreme reiterated the proposition that was laid down by an earlier three Judge Bench of the Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram : AIR 1977 SC 680 to the effect that once the written statement contained an admission in favour of the plaintiff by amendment, such admission of the defendant cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff which would adversely and prejudicially affect the case of the plaintiff. Although our case is a case of amendment of the plaint and not the written statement, in the facts and circumstances of this case, it cannot be said that the proposed amendment would have the effect of explaining or taking away any admission that might have been made by the plaintiff in his original plaint or for that matter would in any way adversely or prejudicially affect or displace the case of the defendants. There was indeed no question of prejudice being caused to the defendants in case the present amendment is allowed. ( 16 ) THUS having considered the sub-missions made on behalf of the parties in the light of the legal propositions governing the question of grant or refusal of amendment of plaint, it cannot be said that the learned judge has comitted a jurisdictional error in allowing this amendment. No interference with the impugned order is, therefore, called for. The revisional application is accordingly dismissed. No order is, however, made as to costs. Urgent xerox certified copy, if applied for, be given to the learned Advocate of the both sides as expeditiously as possible. Application dismissed.