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2013 DIGILAW 27 (JHR)

Nirmala Kispotta v. Nanki Tigga

2013-01-07

P.P.BHATT

body2013
Judgment The petitioner, by way of present writ petition filed under Article 227 of Constitution of India, has prayed for issuance of an appropriate writ, order and direction for setting aside the order dated 12.08.2009 passed by Additional Munsif-I, Ranchi in Eviction Suit No. 36 of 2006, whereby the amendment petition filed by the respondent/plaintiff under order VI Rule 17 of the Code of Civil Procedure was allowed. 2. The learned counsel for the petitioner submitted that the court below has failed to appreciate that the suit was filed under the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, hereinafter referred to (the Act) for eviction and the nature of amendment is in respect of the right, title and interest in the property in question and therefore, the said amendment cannot be allowed in view of the decision rendered by the Hon'ble Apex Court in the case of Rajendra Tiwari Vs. Basudeo Prasad & Anr. [ 2002 (1) J.C.R. 1 , (S.C)]. Learned counsel for the petitioner further submitted that the entire nature of the suit is likely to be changed and, therefore, the amendment, as sought for by the original plaintiff, should not be allowed. It is further submitted that court below has failed to appreciate this crucial point involve in the matter and allowed the amendment application filed by the plaintiff. 3. Learned counsel for the respondent, while supporting the order passed by the Court below, submitted that the court below has not committed any error by passing the said order and in support of the contention, learned counsel for the respondent has referred to and relied upon the judgment of the Hon'ble Apex Court in Rajesh Kumar Aggarwal Vs. K.K. Modi & ors. [ 2006 (4) SCC 385 ]. Learned counsel for the respondent has mainly referred paragraphs 14 to 19 of the said judgment. Learned counsel for the respondent has also referred to and relied upon the judgment delivered in the case of Champa Lal Sharma Vs. Smt. Sumita Maitra (1989 PLJR 381) mainly para 18 in support of his submission. 4. [ 2006 (4) SCC 385 ]. Learned counsel for the respondent has mainly referred paragraphs 14 to 19 of the said judgment. Learned counsel for the respondent has also referred to and relied upon the judgment delivered in the case of Champa Lal Sharma Vs. Smt. Sumita Maitra (1989 PLJR 381) mainly para 18 in support of his submission. 4. Considering aforesaid rival submission and on perusal of the impugned order, it transpires that the respondent/plaintiff has filed a suit under the provisions of Bihar Buildings (Lease, Rent & Eviction)Control Act, 1982 for the purpose of eviction and during the pendency of suit an application under Order VI , Rule 17 of the C.P.C. seeking amendment in the plaint, was filed and the Court below allowed the said application by holding that the amendment is formal in nature and the petitioner- defendant is not likely to be prejudiced in any manner by allowing the said amendment as the defendant will get an opportunity to file additional W.S. 5. Moreover, the learned counsel appearing for the respondent (original plaintiff) submitted during the course of argument that the plaintiff wants to convert the present suit as title suit and in view of the amendment allowed by the court below. Accordingly, the suit will be converted into a Regular Suit of title and the other side will get an opportunity to file written statement if required so as to defend the amended suit. I also perused the judgment cited by the learned counsel for the petitioner in the case of Rajendra Tiwari Vs. Basudeo Prasad & Anr. (Supra) wherein the Hon'ble Apex Court, while dealing with the case in hand held that, in Eviction proceedings the enquiry with regard to title of the plaintiff in respect of property in question cannot be made. But in view of above position the nature of suit will be changed and the same shall not remain as suit for Eviction. Therefore, the above referred judgement will not help to the petitioner. 6. In view of the judgment of the Hon'ble Apex Court in Rajesh Kumar Aggarwal (Supra), the Hon'ble Apex Court has held that the amendment sought for, is required to be considered keeping in mind the real controversy between the parties and if the same is necessary for the purpose determining the real controversy between the parties, then such amendment is required to be allowed. Paragraph 18 & 19 of the said judgment appears to be relevant for the purpose of deciding the present case. Therefore, the same is reproduced. “18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to sub-serve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 19 While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” So far the Judgment cited by the learned counsel for the respondent-plaintiff Champa Lal Sharma Vs. Smt. Sumita Maitra reported in (1989 PLJR 381) is not required to be looked into as the same has been overruled and therefore the same shall not apply in the present case. 7. As discussed hereinabove the suit filed by the respondent -plaintiff is required to be tried and considered as regular civil suit for title. The plaintiff will be at liberty to convert the Eviction Suit in a regular civil suit for title and for that purpose the plaintiff will have to move the Court below for converting it into a regular civil suit. The plaintiff will be at liberty to convert the Eviction Suit in a regular civil suit for title and for that purpose the plaintiff will have to move the Court below for converting it into a regular civil suit. The plaintiff is also required to pay requisite ad valorem Court fee for that purpose. 8. With the aforesaid observations, this writ petition stands disposed of.