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Karnataka High Court · body

2018 DIGILAW 59 (KAR)

Rao Bhaddur Gubbi v. J. B. R. & Co.

2018-01-08

B.VEERAPPA

body2018
ORDER : Petitioner has filed the present writ petition against the order dated 31.3.2017 rejecting I.A.No.3 filed under Order VI Rule 17 read with Section 151 of Code of Civil Procedure made the SC 385/16 on the file of the 10th Addl. Small Causes Judge, Bengaluru. 2. The petitioner who is the Plaintiff before the Trial Court filed a suit for ejectment against the second defendant in respect of shop No.20, situated at ground floor, measuring 6.1 x 13 feet totally 79.3 sq.ft i.e., B schedule property and for a direction to the second defendant to quit, vacate and hand over the B schedule premises to the plaintiff. 3. The Second defendant filed written statement stating that the allegation made in the plaint that first defendant has sublet ‘B’ schedule premises to him is not only a misrepresentation but a deliberate false plea. The first defendant has not let out shop no.20 to the second defendant but second defendant is a tenant under the plaintiff in respect of shop no.21 in all measuring 50 sq.ft. The suit of the plaintiff is not maintainable and sought for dismissal of the suit. 4. According to the learned counsel for the petitioner, before commencement of the evidence, the plaintiff filed an application under Order 6 Rule 17 CPC for the following amendment: 1. In the body of the plaint wherever Shop No.20 is mentioned, the same may kindly be ordered to be substituted by Shop No.21. 2. In the 2nd line of prayer column a) delete No.20 and in its place insert No.21. 3. In the B schedule at 2nd line delete No.20 and in its place insert No.21. 4. In the boundaries of B schedule towards north and south be substituted as under: North by : Jain Temple, South by : Shop No.21 in occupation of Ramu tailor contending that the lease period was for 25 years only which commenced from 17.8.1987 and ended on 31.8.2012. It was further contended that the plaint B schedule property is shown as shop no.20. The plaintiff on a bonafide faith and belief considering the B schedule property as Shop No.20 continued the proceedings without knowing the clerical mistake of the shop number. It was further contended that the plaint B schedule property is shown as shop no.20. The plaintiff on a bonafide faith and belief considering the B schedule property as Shop No.20 continued the proceedings without knowing the clerical mistake of the shop number. After coming to know, the fact that the second defendant in his written statement has raised objection in respect of mentioning the shop number of B schedule property, the present application is filed for amendment. No prejudice would be caused to the second defendant if the application is allowed. 5. The said application was resisted by the second defendant by filing objections contending that the schedule ‘B’ premises is shop no.20 measuring 6.1 X 13 feet totally 79.3 sq.ft. The plaintiff has shown the boundaries as Shop of Hariram on Eastern side, Road on the Western side, shop of S. Ramu on the Northern side and Passage on the Southern side. However, in the application for amendment, the Plaintiff wants to substitute a different shop having totally different shop number, boundaries & dimension, therefore, it would change the entire subject matter of the suit and nature of cause of action. Therefore, the same cannot be allowed. Hence, sought for dismissal of the application. 6. The Trial Court by impugned order dated 31.3.2017 rejected the application filed by the plaintiff for amendment of plaint. Hence, the present writ petition. 7. I have heard learned counsel for the parties to the lis. 8. Sri Basavaraj.T., learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial court rejecting the amendment application is erroneous and contrary to the material on record. He would further contend that the plaintiff is the owner of both shop nos.20 and 21 and the second defendant is the tenant in respect of shop no.21. But while filing the eviction petition, on a bonafide faith and belief considering the B schedule property as Shop No.20 continued the proceedings without knowing the clerical mistake of the shop number. After coming to know of the fact, that the second defendant in his written statement has raised objection in respect of mentioning the shop number of B schedule property, the present application is filed for amendment. The impugned order is unsustainable in the eye of law and therefore, sought to allow the writ petition. 9. After coming to know of the fact, that the second defendant in his written statement has raised objection in respect of mentioning the shop number of B schedule property, the present application is filed for amendment. The impugned order is unsustainable in the eye of law and therefore, sought to allow the writ petition. 9. In support of his contention he relied on a judgment of the Hon’ble Supreme Court in the case of Surender Kumar Sharma vs. Makhan Singh reported in AIR 2009 SC (Supp) 2671 to the effect that the amendment application can be allowed at any stage and cannot be rejected on the ground of limitation. So also, in the case of M.C. Mohammed vs. Gowramma and others reported in ILR 2006 Kar 4584 wherein it was held that the tenant continuing as a statutory tenant after the expiry of the contractual period, does not require another notice of termination of his tenancy. 10. Per contra, Sri B.C. Seetharama Rao, learned counsel for defendant no.2 sought to justify the impugned order and contended that the notice issued to the defendant no.2 is in respect of shop no.20 and the petition was filed in respect of shop no.20 and the same was disputed by defendant no.2 in para 14 of the written statement. He further contend that the application filed for amendment of plaint would change the nature of the suit and cause of action. The Trial Court has rightly rejected the application. Therefore, he sought for dismissal of writ petition. 11. Having heard the learned counsel for the parties, it is not in dispute that Petitioner who is the Plaintiff before the Trial Court filed a suit for ejectment against the second defendant in respect of shop No.20, situated at ground floor, measuring 6.1 x 13 feet totally 79.3 sq.ft that is B schedule property and for a direction to the second defendant to quit and vacate and hand over the B schedule premises to the plaintiff. The same was disputed by the second defendant specifically denying the averments made in the plaint and contended that 2nd Defendant is not the tenant in respect of the shop no.20, but he is a tenant in respect of the shop no.21 which is not the subject matter of the suit schedule and sought for dismissal of the suit. 12. The same was disputed by the second defendant specifically denying the averments made in the plaint and contended that 2nd Defendant is not the tenant in respect of the shop no.20, but he is a tenant in respect of the shop no.21 which is not the subject matter of the suit schedule and sought for dismissal of the suit. 12. It is only when the defendant no.2 filed the written statement denying the plaint averments, the plaintiff opened his eyes and sought for amendment of the plaint by filing an application under Order VI Rule 17 read with Section 151 of Code of Civil Procedure. The Trial Court considering the application and objections, recorded a specific finding that the notice issued by the plaintiff to the 2nd defendant is in respect of shop no.20 but not issued in respect of shop no.21. In order to bring suit for eviction, what is required is that the tenancy must have been terminated by issuing quit notice, under the provision of Section of 106 of Transfer of Property Act. If shop no.21 is inserted, it will be as could as instituting the suit without termination of the tenancy of that shop. The cause of action changes and also prejudice will be caused to the defendants. Accordingly, the Trial Court rightly rejected the application for amendment. 13. The materials on record clearly depicts that the Plaintiff by way of amendment wants to insert altogether new property, shop number, different measurements and boundaries. Definitely, the amendment will change the character of the suit, cause of action and it will take away the defence of the defendant and great prejudice will be caused to the defendant, the same is impermissible under Order 6 Rule 17 of CPC. 14. The judgments relied upon by the learned counsel for the petitioner have no application to the facts and circumstances of the present case. The Hon’ble Supreme Court in the case of Surender Kumar Sharma vs. Makhan Singh observed that the amendment application can be allowed at any stage and cannot be rejected on the ground of limitation. So also, a Division Bench of this court in the case of M.C. Mohammed vs. Gowramma and others held that the tenant continuing as a statutory tenant after the expiry of the contractual period, does not require another notice of termination of his tenancy. So also, a Division Bench of this court in the case of M.C. Mohammed vs. Gowramma and others held that the tenant continuing as a statutory tenant after the expiry of the contractual period, does not require another notice of termination of his tenancy. This court has no quarrel with the law laid down by Hon’ble Apex Court as stated supra. The facts of the judgment relied are entirely different and they have no application to the facts of the present case. 15. If the present application for amendment is allowed and the petitioner is allowed to carry out the amendment, it would change the entire nature of the suit and cause of action, as rightly recorded by the Trial Court. This court is well aware of the fact that the application for amendment can be allowed at any stage of the proceedings, if it does not prejudice the case of the other side. But in the present case if the amendment is allowed definitely it will change the nature and character of the suit. Therefore, the said amendment cannot be allowed. 16. In view of the aforesaid reasons, the impugned order rejecting the application for amendment is in accordance with law, the petitioner has not made out any ground to interfere under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed.