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2000 DIGILAW 434 (MP)

Swarnjee Singh v. Asharam Gamne

2000-04-26

DIPAK MISRA

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ORDER Dipak Misra, J. 1. In this civil revision preferred under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the defendant-petitioner has called in question the legal validity of the order dated 8-1-1999 passed in Civil Suit No. 71/98 by the VI Civil Judge, Class-I, Raipur whereby he has entertained the prayer made under Order 6 Rule 17 of the Code by the plaintiffs. 2. Sans unnecessary details, the facts necessary for disposal of the civil revision are that Late Asharam Gamne, the predecessor in the interest of non-applicant Nos. 1-A to 1-E filed the aforesaid civil suit for eviction of the tenant- petitioner on the ground that the premises in question was required bona fide for starting a 'Kirana' business for himself and his son Shankar Rao. It was pleaded that the plaintiff had no other reasonable suitable accommodation of his own at Raipur town. The defendant-petitioner filed his written statement to the suit contending, inter alia that on the ground floor there are two other shops of which the original plaintiff was the owner and one of the shops had been let out to Gram Seva Samiti which used to carry on the business of selling milk in the name and style of 'Goras Bhandar'. It was further pointed out that during the pendency of the suit the said shops had fallen vacant and the plaintiff along with his son Shankar Rao has started a grossery business. Thus, it was averred that the bona fide need had come to an end. As pleaded in the civil revision issues were framed and the matter was heard and the case was posted to 1-9-1994 for delivery of judgment. However, the matter was taken up on 2-9-1994 and time was granted to the plaintiff to make an application for amendment. The application for amendment was filed and the same was allowed. The said order was impugned by the defendant in civil revision No. 1446/94. During the pendency of the revision the learned counsel for the original plaintiff submitted that he would withdraw the application for amendment. Because of this statement the civil revision was dismissed. 3. While the matter stood thus, the original plaintiffs Asharam Gamne expired. His legal representatives, namely, non- applicant Nos. 1-A to 1-E were brought on record by way of substitution. Because of this statement the civil revision was dismissed. 3. While the matter stood thus, the original plaintiffs Asharam Gamne expired. His legal representatives, namely, non- applicant Nos. 1-A to 1-E were brought on record by way of substitution. After the substitution an application for amendment was filed by the legal representatives wherein it was stated that after the death of the original plaintiff there was an oral partition amongst the plaintiff in respect of the property and the accommodation in question had fallen to the share of Neelkanth Gamne (the non-applicant No. 1-D herein). It was further stated in the application that the said Neelkanth Gamne had been carrying on a 'Kirana' business at Raipur in a rented accommodation and he was being pressurised by the landlord to vacate the premises and hence, the suit accommodation was required bona fide for him to commence the business. The prayer for amendment was objected to by the tenant-petitioner but the learned Trial Judge allowed the application for amendment. The said order allowing the amendment was assailed in Civil Revision No. 1469/98 wherein a learned Single Judge of this Court came to hold that there had been no application of mind in allowing the amendment and accordingly it deserved to be set aside. Being of this view he set aside the order passed by the Trial Court and directed to rehear the parties on the said application and decide the same in accordance with law by passing a speaking order. After the matter was remanded the learned Trial Judge heard the parties and by the impugned order allowed the amendment application. The learned Judge opined, in view of the changed circumstances, the proposed amendment was necessary. The said order is the cause of grievance of the present revisionist. 4. I have heard Mr. Alok Aradhe, learned counsel for the petitioner and Mr. H.B. Agrawal, learned counsel for the respondents, 5. Mr. Aradhe has contended that the Trial Court has committed gross jurisdictional error by allowing the amendment. It is his submission that by virtue of allowing the amendment there has been a change in the cause of action which is not permissible in law and, therefore, the amendment should have been refused. The learned counsel has contended that by allowing the prayer of the non-applicants the tenant-petitioner has been seriously prejudiced as his defence has lost its meaning. The learned counsel has contended that by allowing the prayer of the non-applicants the tenant-petitioner has been seriously prejudiced as his defence has lost its meaning. It is also contended by Mr. Aradhe that as a new case is being introduced the amendment should have been refused. In support of his submission he has placed reliance on the decisions rendered in the case of Shantilal Thakordas and others Vs. Chimanlal Maganial Telwala, AIR 1976 SC 2358 ; Mis. Modi Spinning & Weaving Mills Co. Ltd. and another, AIR 1977 SC 680 ; Haji Mohammed Ishaq Wd. S.K. Mohammed and others Vs. Mohamed Iqbal and MohamedAIi and Co., AIR 1978 SC 798 ; Vtneet Kumar Vs. Mangal Sain Wadhera, AIR 1985 SC 817 ; and Heeralal Vs. Kalyan Mal and others, (1998) 1 SCC 278 . 6. Resisting the aforesaid submissions it is put forth by Mr. H.B. Agrawal, learned counsel for the non-applicants that subsequent facts can be taken note of by the Court of the first instance and, therefore, there is no error in allowing the amendment. The learned counsel has proponed that the original plaintiff has filed the suit for his need as well as need of Shankar Rao and after his death his need becomes the need of legal representatives and when a partition has taken place and the need of a particular son is agitated the cause of action does not change and hence, there is no material irregularity in the order in allowing the amendment. Mr. Agrawal has also canvassed that when the original landlord expressed his need in the plaint it would include the need of all of his legal representatives who have been brought on record after his death. 7. To appreciate the rival submissions raised at the Bar, I have carefully perused the plaint and the written statement which have been brought on record by the learned counsel for the petitioner. Indisputedly the original plaintiff asseverated his and his son Shankar Rao's need in respect of the suit premises. It is also not disputed in the written statement that the tenant-petitioner put forth that original plaintiff was running a 'Kirana' shop in the nearby premises where previously Goras Bhandar was in existence. Thus, in essence, the tenant-petitioner had disputed the bona fide need of the plaintiff and his son Shankar Rao. In this factual backdrop the decisions cited by Mr. Thus, in essence, the tenant-petitioner had disputed the bona fide need of the plaintiff and his son Shankar Rao. In this factual backdrop the decisions cited by Mr. Aradhe are to be appreciated. In the case of Haji Mohammed Ishaq (supra) the Apex Court held as under :-- "..... In our judgment the High Court has rightly refused the prayers of the appellants. The amendment of the written statement sought was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which has never taken up either at the time of the dealings between the parties or in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The High Court rightly rejected all those petitions and we need not mention in any detail the reasons thereof." In the case of Vineet Kumar (supra) the Apex Court expressed as under :-- "16. Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. The question in the present case is whether by seeking benefit of Section 39 of new Act there is a change in the cause of action. In A.K. Gupta and sons Vs. Damodar Valley Corporation, AIR 1967 SC 96 , this Court dealing with the cause of action observed as follows :-- 'The expression "cause of action" in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke Vs. GUI, (1873) 8 CP 107, 117 in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson Vs. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson Vs. Unicos Property Corporation Ltd., (1962) 2 All ER 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile." In the case of Modi Limited (supra) the Apex Court opined that if an amendment of written statement introduces entirely different need comes and seeks to displace the plaintiff completely from admissions made by the defendant in the written statement and the same is liable to be rejected. In the case of Hiralal (supra) Their Lordships held that withdrawal of admissions made in the written statement by the defendant which would displace plaintiff's case by causing irretrievable prejudice the same is not permissible. 9. In this context, I may profitably refer to a decision rendered in the case of Munshi Khan Vs. Mayadevi, AIR 1993 MP 98 , wherein the learned Single Judge of this Court held as under :-- "Where the transferee-landlord filed the suit for eviction under Clauses (e) and (o) of Section 12 (1) of the Act and during the pendency of suit a new ground of 'bona fide need' came into existence, the transferee-landlord could be allowed to amend plaint and claim relief or eviction on such ground." (Quoted from the placitum) At this juncture, I may usefully refer a decision rendered in the case of Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR's, AIR 1997 SC 2399 , wherein the Apex Court held that bona fide need for starting a business can be carried on by his widow. I may profitably quote : "..... That apart, the fact that the landlord needed the premises in question for starting a business which fact has been found by the appellate authority, in the eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son." 10. Even if the landlord died during the pendency of the writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son." 10. In this context it is also useful to refer to the case of Madan Mohan Dube Vs. Narayan Nageshwarji Joshi, 1984 MPLJ SN 15, wherein this Court opined that if a suit is filed by the landlord for eviction on the ground that an accommodation was required for occupation of sons and family and during the pendency of the suit, the suit accommodation fell to the share of a son, as a result of partition of joint family property the son can make an application under Order 6 Rule 17 of the Code and Order 22 Rule 10 of the Code seeking to be added as a plaintiff and seeking amendment of the plaint in order to add the ground of his own requirement seeking defendant's eviction. 11. Testing on the anvil of the enunciation of law in the foregoing decisions and specially keeping in view the law laid down in the case of Kamleshwar Prasad (supra) I am of the considered view, the amendment has been justifiably allowed. It is to be noted in the case of Kamleshwar Prasad (supra) Their Lordships expressed the view that the bona fide need continues and the business can be carried on by the widow of the original landlord or any elder son. 12. In the present case as has been exposited after the death of the original landlord the legal representatives have been brought on record and the claim has been advanced that the property in question has fallen to the share of Neelkanth and he has the bona fide need of the premises to run a Kiranashop. If the bona fide need continues and there is an averment that there has been partition there is no reason for not allowing the amendment. Mr. Aradhe, learned counsel for the petitioner has commented that there cannot be an oral partition. Needless to emphasise, the merits of the amendment are not to be gone into at this stage. The facts remains, the cause of action does not change and, therefore, there is no reason for not allowing the amendment. The decisions cited by Mr. Mr. Aradhe, learned counsel for the petitioner has commented that there cannot be an oral partition. Needless to emphasise, the merits of the amendment are not to be gone into at this stage. The facts remains, the cause of action does not change and, therefore, there is no reason for not allowing the amendment. The decisions cited by Mr. Aradhe are distinguishable and do not apply to the facts of the present case. 13. In view of my preceding analysis, there is no merit in the civil revision and the same is accordingly dismissed. However, there shall be no order as to costs. 14. Civil Revision dismissed.