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2016 DIGILAW 292 (JHR)

Surendra Prasad Burnwal v. Sri Ram Narain

2016-02-08

SHREE CHANDRASHEKHAR

body2016
ORDER : Aggrieved by order dated 23.08.2005 in Title (Eviction) Suit No. 46 of 2002 whereby, application under Order VI Rule 17 CPC for amendment in the plaint was allowed, the present writ petition has been filed. 2. Heard the learned counsel for the parties and perused the documents on record. 3. Title (Eviction) Suit No. 46 of 2002 was instituted by one Rupa Devi for ejection of defendant Surendra Prasad Burnwal (petitioner herein). The respondents are the substituted legal heirs of the original plaintiff. It was pleaded that Schedule-B premises was required by the plaintiff for use and occupation of her younger son namely, Kundan Ram who was unemployed and the plaintiff wanted her son to start a grocery shop in the Schedule-B premises. The eviction was sought also on the ground of default in payment of agreed rent from October, 2001. During the pendency of the suit, the legal heirs of the plaintiff were substituted in her place. An application under Order VI Rule 17 CPC r/w Section 151 CPC was filed by the substituted plaintiffs for incorporating para 9-A in the plaint which reads as under; “9-A. That plaintiffs have a bonafide requirement of the Schedule-B premises for their personal use and occupation since there is a shortage of accommodation in their residential house to accommodate the guest and relatives in the said residential house which is near the Schedule-B premises and as such Schedule ‘B’ premises is more suitable for accommodate their guests and relatives and as such required in same reasonably bonafidely and in good faith for the said purpose.” 4. The said application has been allowed vide order dated 23.08.2005. 5. A perusal of application for amendment dated 09.02.2005 discloses that the plaintiffs admit that Kundan Ram got employment in Railway on 04.07.2003 and he was posted at Jamalpur. As noticed above, the suit was filed for bonafide requirement of the original plaintiff for use and occupation of the Schedule-B premises by her son, Kundan Ram. During the pendency of the suit the plaintiff died and her son got employment. In view of the facts pleaded in the amendment application, it must be held that the plaintiffs intend to incorporate an entirely new cause of action which was previously not pleaded in the eviction suit. During the pendency of the suit the plaintiff died and her son got employment. In view of the facts pleaded in the amendment application, it must be held that the plaintiffs intend to incorporate an entirely new cause of action which was previously not pleaded in the eviction suit. The plea taken by the plaintiffs that the Schedule-B premises is required for their personal use and occupation, is at variance with the plea taken in the plaint. The personal necessity of the substituted plaintiffs can be adjudicated in a fresh suit filed by them and not in Title (Eviction) Suit No. 46 of 2002. It further appears that the application for amendment was filed after the trial commenced and the plaintiffs had examined some of the witnesses. Normally, amendment in the plaint is not allowed after commencement of the trial that is, after framing of the issues. It is entirely immaterial that nature of the suit would not change and it would remain the eviction suit filed on the ground of bonafide requirement of the plaintiffs, what is material is that the proposed amendment would introduce a different cause of action for which foundational facts were not pleaded in the suit. Moreover, I am of the opinion that the amendment sought to be incorporated in the plaint is not formal in nature rather, it would change the whole complexion of the suit. Now, in view of the averments in the amendment application, the plaintiffs must be deemed to have withdrawn the plea of bonafide requirement of Schedule-B premises for use and occupation of Kundan Ram, who got employment in Railway on 04.07.2003. For establishing that the plaintiffs require Schedule-B premises for using the same as guest house, they are required to adduce evidence entirely unconnected with the evidence which they intended to lead in Title (Eviction) Suit No. 46 of 2002. 6. Considering the aforesaid facts, I am of the opinion that the Trial Judge committed manifest error in law in permitting amendment in the plaint. Accordingly, the impugned order dated 23.08.2005 is hereby set aside. The writ petition stands allowed.