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2004 DIGILAW 850 (PAT)

Ashok Kumar Prasad v. Subidh Kumar Jain @ Subodh Kumar Jain

2004-08-23

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. The petitioner is defendant in Eviction Suit No. 17/1997 filed by O.P. No. 1 under sec. 14 of Bihar Building (Lease, Rent and Eviction) Control Act, 1982, (hereinafter referred to as the Act) on the ground of personal necessity and expiry of fixed period of lease. The defendant filed written statement in which he admitted the relationship of land-lord and tenant between the parties, but claimed that there was no violation of the terms of agreement, rather the plaintiff himself refused to further extend the period of lease after two extensions and that there was no personal necessity of the plaintiff. 3. During the pendency of the aforesaid suit, the sole plaintiff sold the suit premises to the subsequently added plaintiff No. 2 (O.P. No. 2) by sale-deed dated 16.12.2002 whereafter the purchaser was added as plaintiff No. 2 by the Trial Court on 21.4.2003 against which the defendant filed civil revision No. 826/2003 which was disposed of on 21.7.2003 by this Court giving liberty to the defendant to raise the question of maintainability of the suit in the trial Court. 4. After being added as Plaintiff No. 2 on 21.4.2003, he filed an amendment petition on 22.5.2003 asserting his personal necessity of the suit premises. In reply to the said petition the defendant-petitioner filed rejoinder on 16.6.2003 whereafter by the impugned order dated 7.2.2004 the learned Second Munsif, Arrah, allowed the amendment petition of plaintiff No. 2 (OP No. 2). 5. The learned counsel for the defendant-petitioner submits that the impugned order has been passed without considering the petition filed by the defendant on 18.8.2003 regarding maintainability of the suit as the personal necessity of the original plaintiff can not be assumed to be the personal necessity of the purchaser. Hence, according to the defendant-petitioner, the suit itself not being maintainable there was no occasion for amendment of the plaint. The learned counsel for the petitioner further submits that by the impugned order a completely new case is being made out as the newly added plaintiff wants to remove Paragraph-12 and to substitute it with another Paragraph giving completely a new twist to the cause of action. The learned counsel for the petitioner further submits that by the impugned order a completely new case is being made out as the newly added plaintiff wants to remove Paragraph-12 and to substitute it with another Paragraph giving completely a new twist to the cause of action. The learned counsel for the petitioner also stated that the trial had already begun and hence the amendment can not be legally allowed as per the proviso to Order-VI, Rule-17, CPC On the aforesaid grounds the learned counsel for the petitioner submits that the impugned order be set aside. 6. On the other hand, the learned counsel for the opposite parties submitted that the question of maintainability of the suit is a completely different question and both the amendment matter and the maintainability matter can not be decided together as for deciding the question of maintainability evidence has to be taken for which the trial Court has directed the defendant who has till date not produced any witness for evidence in this regard. The learned counsel for the Opposite parties further submitted that the amendment has to be allowed in view of the decision of the Apex Court in the case of Prem Bakshi and Ors. V/s. Dharam Dev and Ors., reported in 2002 (2) PLJR 187 (SC). 7. After hearing the learned counsel for the parties and after perusing the materials on record it is quite apparent that plaintiff No. 2 was added on 21.4.2003 and he filed the amendment petition on 22.5.2003 and hence it can be said that inspite of due diligence he could not file the amendment petition before the commencement of the trial as he had been impleaded as plaintiff just a month back, hence in the aforesaid circumstances the proviso of Order-VI, Rule-17, CPC can not legally bar plaintiff No. 2 to file the amendment petition. Furthermore, it is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or could cause irreparable injury to any party. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence, a situation can not be envisaged where amendment of pleadings, whatever be the nature of such amendment, would cause irreparable injury to other defendants who still have full right to contest the amended plaint by their own pleadings and evidence. 8. Hence, a situation can not be envisaged where amendment of pleadings, whatever be the nature of such amendment, would cause irreparable injury to other defendants who still have full right to contest the amended plaint by their own pleadings and evidence. 8. So far the question of maintainability of the suit is concerned, the matter is pending before the learned Court below who will consider it independently, according to its own merit, and in accordance with law, without being prejudiced either by this order or by the impugned order of the learned Court below. 9. With the aforesaid observations this civil revision is disposed of.