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2011 DIGILAW 334 (CAL)

Tarakeswar Tewari v. Rambahadur Shaw

2011-03-08

PRASENJIT MANDAL

body2011
JUDGMENT:- Prasenjit Mandal, J. Challenge is to the order dated November 23, 2010 passed by the learned Civil Judge (Junior Division), Fourth Court at Alipore, District – South 24 Parganas in Title Suit No.125 of 1995 thereby allowing an application for amendment of the plaint filed by the opposite parties. The short fact necessary for the purpose of disposal of this application is that one Smt. Jyotirmoyee Das instituted a suit being Title Suit No.125 of 1995 for eviction against the defendant/petitioner herein on the ground of default, reasonable requirement, etc. with regard to the premises in suit, as described in the schedule of the plaint before the learned Civil Judge (Junior Division), Fourth Court at Alipore, District – South 24 Parganas. Subsequent to the filing of the suit, devolution of interest by a registered deed took place and the plaintiffs/opposite parties herein became the owners of the premises in suit. They were substituted accordingly and they were proceeding with the suit. After lapse of three years, they filed an application for amendment of the plaint contending that they also require the premises in suit for their own use and occupation. That application was allowed by the impugned order. Being aggrieved, the defendant/petitioner has come up with this application. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned Advocates for the parties and on going through the materials on record, I find that the original plaintiff instituted the suit for eviction against the defendant/petitioner on the ground of default, reasonable requirement, etc. After devolution of interest, the present plaintiffs/opposite parties herein are continuing with the said suit on the same cause of action. After lapse of three years from the date of devolution of interest, they filed the application for amendment incorporating the ground of recovery of possession on the ground of their own use and occupation. Mr. J. R. Chatterjee, learned senior Advocate appearing on behalf of the petitioner, submits that the previous grounds of eviction have not been deleted. Subsequently, upon devolution of interest, the present plaintiffs have prayed for the ground of reasonable requirement without deletion of the earlier ground of reasonable requirement of the erstwhile owner. So, if the suit is proceeded with in the manner and as per amendment by the impugned order, it would create a confusion. Mr. Subsequently, upon devolution of interest, the present plaintiffs have prayed for the ground of reasonable requirement without deletion of the earlier ground of reasonable requirement of the erstwhile owner. So, if the suit is proceeded with in the manner and as per amendment by the impugned order, it would create a confusion. Mr. Chatterjee also submits that the Sub-Section 3A of the Section 13 of the West Bengal Premises Tenancy Act is a bar to allow such amendment. The plaintiff/opposite parties cannot incorporate the ground of reasonable requirement in the suit instituted by the previous owner. He also submits that if the opposite parties want to incorporate the ground of reasonable requirement, they are required to institute a fresh suit on that ground. In support of his contention, Mr. Chatterjee has referred to the decisions reported in 1996 WLC Rajasthan UC 3 and 1987 Supple 1 SCC 630. On the other hand, Mr. Roy, learned Advocate appearing for the opposite parties, submits that the suit was filed for recovery of possession by the erstwhile owner on the ground of default and reasonable requirement. After devolution of interest, the plaintiffs/opposite parties herein are proceeding with the suit on the selfsame ground but they did not press for the ground of reasonable requirement under Section 13(1) (ff) of 1956 Act initially because three years had not lapsed from the date of purchase. But as soon as the locking period of three years has been completed as per provisions of the Section 13 (3A) of the said 1956 Act, the plaintiffs are at liberty to pray for a decree for recovery of possession on the ground of reasonable requirement. In support of his contention Mr. Roy has referred to a number of decisions such as, AIR 1983 SC 319 , AIR 1975 SC 1146 , AIR 1989 Cal 192 and 1992 (11) CHN 407 and thus he submits that amendment can well be allowed. He also submits that by the proposed amendment, the character of the suit is not changed. Previously, it was a suit for recovery of possession and after amendment of the plaint, the character of the suit remains the same, that is, for recovery of possession. So, the defendant is not prejudiced in any way. The prayer for relief has not been changed at all. Previously, it was a suit for recovery of possession and after amendment of the plaint, the character of the suit remains the same, that is, for recovery of possession. So, the defendant is not prejudiced in any way. The prayer for relief has not been changed at all. He also submits that at the time of consideration of the application for amendment of the plaint, the merit of the application shall not be considered. It shall be dealt with at the time of trial. But the question is if the prayer for amendment is allowed, the defendant will be prejudiced or nor. Since, the character of the suit remains the same the question of prejudice does not arise. Therefore, he submits that the learned Trial Judge has rightly allowed the application for amendment of the plaint. So far as the decisions referred to by Mr. Chatterjee are concerned, I find that the ratio of the decision 1987 Supple 1 SCC 630 is to the effect that after the plaintiffs had transferred his right, title and interest in the demised premises by executing a registered deed of sale, the amendment was allowed by treating the same as a subsequent event necessitating a remand of the suit for fresh disposal and the present purchaser on remand was impleaded as a party respondent. The Hon’ble Apex Court has also held that since the lock period was for three months from the date of purchase, a suit could not be brought by the purchaser till the expiry of the said period calculated from the date of the sale deed. The purchaser was to institute a separate suit for his personal requirement which he never did. That suit was dismissed giving liberty to the purchaser to file a fresh suit on the ground of his bona fide requirement. The said decision does not lay down the fact of the plaint case, but it is apparent that the matter went to the Hon’ble Apex Court after disposal of the suit by the concerned learned Trial Judge and then the appeal by the Hon’ble High Court. The evidence was already adduced by the erstwhile owner of that suit property and as such, when the Hon’ble Apex Court passed the order of remand, the Hon’ble Apex Court observed that the orders of the Courts below should be vacated and the suit for eviction would stand dismissed. The evidence was already adduced by the erstwhile owner of that suit property and as such, when the Hon’ble Apex Court passed the order of remand, the Hon’ble Apex Court observed that the orders of the Courts below should be vacated and the suit for eviction would stand dismissed. However, liberty was given to the subsequent purchaser to bring a fresh suit. But, in the instant case, the situation is altogether different. The erstwhile owner filed the suit on the ground of default, reasonable requirement, etc. Thereafter, the devolution of interest took place and the subsequent purchasers proceeded with the suit and they filed the application for amendment to include the ground of reasonable requirement after lapse of three years from the date of purchase and they wanted to proceed with the suit filed by the erstwhile owner. Therefore, it appears that the situation is altogether different. The second decision referred to by Mr. Banerjee 1996 WLC Raj UC 3 is to the effect that the right of bona fide requirement cannot be passed on to a subsequent purchaser by inheritance or succession. There is no provision in law which permits such kind of a situation. The proper course is to file a separate suit with regard to the personal bona fide necessity available to them. This decision of the Rajasthan High Court is not binding on this Bench, but it is persuasive. Mr. Roy has referred many decisions most of which are on general proposition as to grant of the application for amendment of the plaint but our Hon’ble High Court has clearly held in the Division Bench in 1992 (11) CHN 407 that the subsequent purchaser is entitled to invoke the ground of eviction as mentioned in Clause 13(1) (ff) of the 1956 Act which was filed within the prohibited period mentioned in Section 13(3A) of the said Act. The prayer for amendment on the addition ground under Section 13 (1) (ff) was correctly allowed and such order cannot be challenged on this ground. In that decision, the Title Suit No.932 of 1976 was filed within one year from the date of purchase in 1975 and other seven suits were filed in 1978 and 1979. Therefore, all the eight suits referred to in the said judgment were instituted post purchase of the suit property by the plaintiff. In that decision, the Title Suit No.932 of 1976 was filed within one year from the date of purchase in 1975 and other seven suits were filed in 1978 and 1979. Therefore, all the eight suits referred to in the said judgment were instituted post purchase of the suit property by the plaintiff. In the instant case, the situation is different to some extent that the plaintiffs were substituted on devolution of interest by transfer and so, the previous suit lodged by the erstwhile owner is being continued. After lapse of three years from the date of purchase, as observed earlier, the present plaintiffs prayed for amendment of the plaint incorporating the ground of reasonable requirement under Section 13 (1) (ff). I am of the view that the ratio held therein is very much applicable in the instant suit. This being the position, I am of the view that Section 3A will not be a bar to allow the application for amendment of the plaint. The decision reported in 1992 (11) CHN 407 will prevail in the instant situation and the present plaintiffs can well proceed with the suit claiming recovery of possession on the ground of reasonable requirement under Section 13 (1) (ff) of the 1956 Act after lapse of three years from the date of purchase. Therefore, I am of the view that the learned Trial Judge has rightly allowed the application for amendment of the plaint and that there is no material irregularity in the order impugned. So, the impugned order does not call for any interference. The revisional application has no merit. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.