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2009 DIGILAW 724 (CAL)

Shekhar Roy Chowdhury v. Syed Bahauddin

2009-09-09

JYOTIRMAY BHATTACHARYA

body2009
Judgment :- (1). The plaintiffs application for amendment of plaint was allowed by the learned Trial Judge by an order dated 19th February, 2009 vide Order No.48. passed by the learned Civil Judge, Junior Division, Additional Court at Sealdha in Ejectment Suit No.380 of 2005. The defendant is aggrieved by the said order. (2). Hence the instant Revisional Application under Article 227 of the Constitution of India has been filed by the defendant/petitioner herein before this Court. Heard Mr. Bhattacharya, learned Advocate appearing for the petitioner and Mr. Chatterjee, learned Advocate appearing for the opposite parties. Considered the materials on record including the order impugned. Let me now consider the merit of this revisional application in the facts of the instant case. (3). The plaintiffs filed a suit for eviction against the defendant/petitioner herein on various grounds under the West Bengal Premises Tenancy Act, 1997. On perusal of the plaint, this Court finds that eviction of the defendant was sought for on the ground of default in payment of rent, for violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and also on the ground of reasonable requirement of the plaintiff as well as for the members of his family. The said suit which was filed sometime in February, 2009 was registered as Ejectment Case No.380 of 2005. (4). The defendant was contesting the said suit by filing written objection therein denying the allegations made out by the plaintiffs in the plaint. Subsequently, the plaintiffs filed an application for amendment of their claim for introducing two additional grounds of eviction in the plaint. (5). On perusal of the proposed amendment this Court finds that the plaintiffs wanted to introduce that the wife of the defendant no.1 namely Dr. Jolly Roy Chowdhury is the absolute owner of a self-content flat lying and situate at 25, Roy Charan Ghosh Lane, Kolkata 700039 being flat no. A-5/8 (HIG) Purba wherein the defendant no.1 resides with his wife. (6). The plaintiffs further wanted to introduce that the original tenant Smt. Krishna Roy Chowdhury predecessor of the defendants died on 18th April, 2003 leaving behind her one son and a daughter who have inherited the said tenancy right by operation of law. The said son and the daughter of the original tenant are the defendants in the suit. (6). The plaintiffs further wanted to introduce that the original tenant Smt. Krishna Roy Chowdhury predecessor of the defendants died on 18th April, 2003 leaving behind her one son and a daughter who have inherited the said tenancy right by operation of law. The said son and the daughter of the original tenant are the defendants in the suit. Since five years have already expired from the date of death of the original tenant Smt. Krishna Roy Chowdhury, the right of the legal heirs of the original tenant to enjoy or continue with the tenancy came to an end on 17th April, 2008 and thus, the defendants have lost their protection against eviction and thereby they are liable to be evicted on said ground also. (7). Thus, it appears that the plaintiffs, in fact, wanted to introduce an additional ground of eviction as mentioned in Section 6(1)(j) of the West Bengal Premises Tenancy Act, 1997. The plaintiffs also wanted to introduce that in view of the definition of tenant as mentioned in Section 2(g) of the said Act, the heirs of the original tenant cannot get any protection against eviction after expiry of the period of five years from the death of the original tenant as their tenancy came to an end after the expiry of five years from the date of death of their mother. (8). These are the two grounds which were made available to the plaintiffs during the pendency of the suit due to occurrence of subsequent events. The plaintiff wanted to introduce these grounds in his plaint by way of amendment. (9). The learned Trial Judge was pleased to allow the plaintiffs prayer for such amendment. Mr. Bhattacharya, learned Advocate appearing for the petitioner submits that landlord cannot seek eviction of his tenant on any ground which did not exist on the date of issuance of the eviction notice. He contended that eviction notice is a part of the cause of action of an ejectment suit. He further contended that a landlord can seek eviction of his tenant only on those grounds which existed and/or were available to the landlord as on the date of issuance of the eviction notice as the eviction notice is the foundation of the ejectment suit. He further contended that a landlord can seek eviction of his tenant only on those grounds which existed and/or were available to the landlord as on the date of issuance of the eviction notice as the eviction notice is the foundation of the ejectment suit. According to him, since the grounds which were sought to be added by the plaintiff by way of amendment admittedly did not exist on the date of issuance of the eviction notice, the plaintiffs cannot seek eviction of the defendant on those grounds and as such, the learned Trial Judge ought not to have permitted the plaintiffs to incorporate those two additional grounds in the plaint by way of amendment. In support of such submission Mr. Bhattacharya relied upon the following two decisions of this Honble Court:- 1. In the case of Mrs. V. Aviet Vs-Malik Zafar reported in (1987)2 CHN page 436. 2. In the case of Rameshwar Roy Vs-Baidhendra Kinkar Patra reported in AIR 1998 Calcutta page 292. (10). It is no doubt true that in the aforesaid decisions two different Division Benches of this Honble Court held that notice to quit is a condition precedent for institution of the eviction suit and as such, it is a part of the cause of action. It was held in both the aforesaid citations that events subsequent to the notice are not relevant and as such, the default for the post notice period cannot constitute a ground for eviction of a tenant. (11). Thus, relying upon the said decision Mr. Bhattacharya contended that since the grounds of eviction which were sought to be incorporated by way of amendment are all events occurred subsequent to the issuance of the eviction notice, the decree for eviction cannot be passed on the basis of those grounds. As such, the learned Trial Judge ought not to have permitted the plaintiffs to incorporate those grounds by way of amendment. (12). Mr. Chatterjee, learned Advocate appearing for the opposite parties contended that in view of the series of decision of this Honble Court, it cannot be held now that the grounds which are made available to the plaintiffs for eviction of his tenant due to occurrence of certain events subsequent to the filing of the suits cannot be introduced in the plaint by way of amendment. In support of such submission Mr. In support of such submission Mr. Chatterjee relied upon the following decisions of this Honble Court:- 1. In the case of D.P. Mahawar Vs-Gopal Das Mahawar reported in 80 CWN page 269. 2. In the case of Nilkanta Roy Vs-Dhirendra Nath Mallick reported in 1975(2) CLJ page 396. (13). By referring to the said citations, Mr. Chatterjee submitted that it was decided in those decisions that new ground for eviction can be allowed to be introduced by way of amendment of plaint. Mr. Chatterjee submitted that none of these decisions was taken into consideration by the Division Benches of this Honble e Court in the decisions cited by Mr. Bhattacharya. As such, according to Mr. Chatterjee the decisions which were cited by Mr. Bhattacharya cannot be regarded as a law declared by this Court. (14). On perusal of those decisions this Court finds that the decisions which are cited by Mr. Bhattacharya were delivered by two different Division Benches of this Honble Court while the decisions which were cited by Mr. Chatterjee are all Single Bench decisions of this Honble Court. (15). As such, the question which is raised by Mr. Bhattacharya in this revisional application cannot be set at rest by considering only the aforesaid decisions cited by the learned Counsel of the respective parties. (16). For finding out the law which is now prevalent on this subject, this Court is required to take note of an unreported decision of the Honble Supreme Court in the case of Civil Appeal No.1521 of 1984 Smt. Prova Rani Chakraborty and Anr. Vs- Inder Sengupta wherein it was held that an additional ground of reasonable requirement which was made available during the pendency of the eviction suit after the expiry of the prohibited period under Section 13(3A) of the West Bengal Premises Tenancy Act, 1956, can be introduced in the plaint by way of amendment. In fact, by relying upon the said unreported decision of the Honble Supreme Court a Division Bench of this Honble Court in the case of Smt. Uma Mishra (Sanyal) Vs-Monoranjan Sinha and Ors. In fact, by relying upon the said unreported decision of the Honble Supreme Court a Division Bench of this Honble Court in the case of Smt. Uma Mishra (Sanyal) Vs-Monoranjan Sinha and Ors. reported in 1992(2) CHN page 407 held that the landlord is entitled to invoke the ground of eviction as mentioned in Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 by amendment of plaint which was filed within the prohibited period as mentioned in Section 13(3A) of the said Act and the decrees passed by the Court below on the basis of the additional ground of eviction as provided in Section 13(1)(ff) are valid and cannot be challenged on the ground that since the said suit was filed within the prohibited period, eviction cannot be sought for on the ground of reasonable requirement in the said suit after the expiry of the prohibited period. Even in the following subsequent decisions, identical views were expressed by this Honble Court :-1. In the case of Satya Gopal Saha Vs- Snehalata Saha reported in 1989(1) CLJ page 256. 2. In the case of Samar Kr. Sarkar Vs- Asit Kr. Sarkar and Ors. reported in 1990(1) CHN page 107. (17). Thus, if all the aforesaid decisions are taken into consideration, then this Court has no hesitation to hold that the grounds which are made available to the plaintiffs during the pendency of the suit due to occurrence of subsequent events, can be introduced by the plaintiffs by way of amendment of plaint. Any view contrary to this, cannot be subscribed by this Court as, if such a view is taken, then on occurrence of each particular set of subsequent event, a fresh ground of eviction will be constituted, and in that case for availing of those grounds, the plaintiff will be required to institute independent eviction suit on each occasion whenever such new ground will be made available to him during the pendency of the suit but such a situation cannot even be conceived of by any Court as the basic principle of avoiding multiplication of proceeding will be frustrated if such view is taken by the Court. (18). Under such circumstances, this Court holds that the learned Trial Judge did not commit any illegality in the facts of the instant case. The revisional application thus, stands rejected. (18). Under such circumstances, this Court holds that the learned Trial Judge did not commit any illegality in the facts of the instant case. The revisional application thus, stands rejected. The plaintiffs are, thus, permitted to carry out such amendment of his plaint as per Order 6 Rule 18 of the Civil Procedure Code if not already made, within one week after the reopening of the Court after the Puja Vacation. (19). The plaintiff is directed to serve a copy of the amended plaint upon the defendant within two weeks thereafter. The defendant is permitted to file the additional written statement to the amended pleadings of the plaint within three weeks from the date of service of the copy of the amended plaint upon the defendant. (20). The learned Trial Judge is thus requested to expedite the hearing of this suit as far as possible. The revisional application is, thus, disposed of.