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1999 DIGILAW 661 (PAT)

Most. Sumkitra Devi v. Yogendra Choudhary

1999-07-28

S.N.JHA

body1999
Judgment 1. This revision by the plaintiffs is directed against an order by which prayer for amendment of the plaint has been rejected. 2. The suit in question i.e. Title Suit No.9 of 1983 was originally instituted by Ramdeo Choudhary against Mahadeo Choudhary seeking his eviction from the disputed premises. Both of them are since dead and are represented by their legal heirs as plaintiffs and defendants respectively. Shortly stated, the plaintiffs case is that by virtue of private partition between the original plaintiff and the original defendant, holding no.1 (new) of R.S. plot no. 1764 situated at Sikandarpur in Muzaffarpur town, of which the disputed premises is a pan", was allotted to the plaintiffs share in February 1976. The plaintiff got his name recorded in the revenue records as well as the municipal records and has been paying rent and taxes. The defendant approached him making a request to allow him to occupy the disputed premises as licencee for sometime till he re-models and renovates his residential house at Nazirpur, which had been allotted to him in the said partition. The defendant has since re-modelled and renovated his said Nazirpur residential house and, infact, shifted part of his family and belongings but holding over in this disputed premises with some of his family members and has refused to vacate in spite of repeated demands. According to the plaintiff, it was agreed upon that if the defendant fails to hand over vacant possession of the disputed premises by the end of 1976 he will be liable to pay damages by way of house rent @ Rs. 200/- per month. Despite repeated demands not a single paisa has been paid to the plaintiff. The plaintiff stated that besides his own personal need to carry on the business of trade in toddy, he has a large family consisting of two wives and six sons, one of whom was married. The plaintiff, thus, reasonably and in good faith required the disputed premises for accommodation of himself and wives and children. 3. Before referring to the proposed amendment it is worth pointing out that the aforesaid suit was decreed ex parte on 23.12.89 and pursuant to the said decree the defendants were evicted from the disputed premises on 4.9.90. The ex parte decree, has since been set aside. The defendants, however, remain out of possession of the premises. 4. 3. Before referring to the proposed amendment it is worth pointing out that the aforesaid suit was decreed ex parte on 23.12.89 and pursuant to the said decree the defendants were evicted from the disputed premises on 4.9.90. The ex parte decree, has since been set aside. The defendants, however, remain out of possession of the premises. 4. After the suit was restored, on 15.9.98 the plaintiffs filed the application for amendment of the plaint, seeking addition of paragraph nos. 6 (a), the substitution of existing paragraph 7 and addition of new paragraphs 7(a) to 7(e). Certain amendments in the relief portion and the cause title were also sought. Broadly speaking, the proposed amendment can be clubbed in three parts. They relate to statements with respect to exclusive title of the plaintiffs, increased need of the premises on account of the grown size of the family during the intervening period and perpetuation of the plaintiffs possession over the disputed premises following the delivery of possession effected in their favour on 4.9.90 pursuant to the decree dated 23.12.89. 5. Shri Shashi Shekhar Dwivedi, learned counsel for plaintiff-petitioners, contended that the proposed amendments do not change the nature of the suit and this being the primary consideration in allowing or disallowing amendments the court below committed error in refusing the prayer for amendments. Shri Chittaranjan Sinha, learned counsel for the defendants-opposite party, submitted that the proposed amendments are malafide and have rightly been refused. He pointed out that the suit has been instituted claiming exclusive title by virtue of private partition describing the defendants as licencees. If the plaintiffs succeed in proving their exclusive title and the defendants are held to be licencees, the plaintiffs are bound to succeed. Now, having got possession of the disputed premises by virtue of the ex parte decree, the plaintiffs do not want the title to be decided. They rather want their possession over the disputed premises by virtue of the said ex parte order to be protected on the ground of the increased size of the family, suppressing the fact that the ex parte decree stands set aside and the question relating to exclusive title of the plaintiffs is wide open in the suit. 6. In the facts of the case, I find sufficient force in the contention of the counsel for the opposite party. 6. In the facts of the case, I find sufficient force in the contention of the counsel for the opposite party. From reading of the amendment petition it appears at the first instance as if the plaintiffs are elaborating their case of personal necessity by stating facts relating to subsequent events. The fact, however, is that it is not a suit for eviction on the ground of personal necessity under section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. It is a title suit in which the plaintiffs seek eviction of the defendants as licencee on the ground that the plaintiffs possess exclusive title by virtue of private partition. It is curious that while in proposed paragraph 6(b) the plaintiffs want to reiterate their case that Ramdeo Choudhary and after his death the plaintiffs are the exclusive owners- landlord of the schedule I property. In paragraph 7(c) they stated that delivery of possession granted to them on 4.9.90 on the basis of the judgment and decree dated 23.12.89 "should be protected by the court on the basis of the needs of the plaintiffs as stated above". The proposed amendment, I am inclined to think, is not only mala fide but, if allowed, may also change the nature of the suit. 7. The ratio of the decision in Hasmat Rai V/s. Raghunath Prasad (AIR 1981 Supreme Court 1711) and Gulab Bai V/s. Nalin Narsi Vohra (AIR 1991 Supreme Court 1760) relied upon by the counsel for the petitioners has no application in this case. In those cases the Supreme Court reiterated the well established principle that for determining the bonafide requirement of the landlord, subsequent events can be considered by the court. The present case, however, is a case of different type. As stated above, the suit is not for eviction on the ground of personal requirement of the landlord. The subsequent events referred to in the proposed amendments are not sought to be made the basis of eviction, rather they are sought to be made the basis for perpetuation of possession obtained on the basis of ex parte decree which stands set aside. The issue of title being wide open in the suit, the proposed amendment cannot be said to be bonafide. 8. In the above premises, I do not find any merit in this civil revision, which is accordingly, dismissed.