JUDGMENT 1. This first appeal has been preferred by the appellants/plaintiffs challenging the judgment and decree dated 4.9.2015 passed by 5th Additional District Judge, Jabalpur in Civil Suit No.10-A/2015 whereby learned trial Court has dismissed the plaintiffs’ suit filed for eviction on the ground under section 12(1)(m) of the M.P Accommodation Control Act, 1961 (in short ‘the Act’). 2. In short the facts are that the plaintiffs instituted a suit for eviction with the allegations that they are owners of the suit property bearing plot No.10, 11 & 12 having Municipal House No.1374, total area 45000 sq.ft over which a house is constructed over an area 2360 sq.ft which came in ownership of the plaintiffs on the basis of registered gift deed dated 17.5.1976 executed by their father late Shri Tatarao Narla. It is alleged that on 1.11.2007 an agreement of tenancy was executed for a period 60 months in between the appellant/plaintiff 1 and defendant whereby the suit property was let out for residential purpose on monthly rent of Rs.5,000/-, with the stipulation that the lessee shall not change nature of property without previous consent of the lessor, but contrary to the terms of the lease, the defendant sent a letter to the plaintiffs informing that necessary maintenance of the house in question has been done in which an amount of Rs.1,50,000/- was spent and the house still requires a lot of maintenance work, thereupon the plaintiff visited the suit property and found that the defendant has constructed a godown, servant quarter & garage in the open area of the suit property without consent of the plaintiffs. As a result thereof the plaintiffs sent a legal notice dated 20.4.2009 to the defendant terminating the lease with the further instructions to him to vacate the premises within a period of 15 days, but by sending false reply he denied the averments of notice and contended that he has raised construction of servant quarter, garage and store room with prior permission of the plaintiffs and it is of temporary nature. With these allegations the suit was filed. 3. With these allegations the suit was filed. 3. The defendant appeared and filed written statement denying the allegations made in the plaint, however agreement of tenancy and construction raised by the defendant was admitted with the contentions that the temporary construction made by him has not materially altered the rented accommodation to the detriment of the landlord’s interest and has not diminished its value. On inter alia contentions the suit was prayed to be dismissed. 4. On the basis of pleadings of the parties, learned trial Court framed as many as six issues and recorded evidence of the parties. In support of their case the plaintiffs examined Gangadhar Narla (PW-1), Madhulika Ram Badlani (PW-2), Kiran Raghunath Kerhalkar (PW-3) and submitted documentary evidence (Ex.P/1 to P/11). In turn the defendant- Nalin Gala (DW-1) examined himself and submitted documentary evidence (Ex.D-1 & D-2). 5. After hearing the parties, learned trial Court on the basis of available evidence found relationship of landlord and tenant in between the parties but for want of requisite stamp duty and egistration, the lease deed dated 1.11.2007 was held to be inadmissible in evidence, although it was not produced on record. At the same time while deciding issue No.2 it was held that the defendant has raised construction on the open land without plaintiffs’ permission and has breached the agreement of tenancy dated 1.11.2007, however refused to pass decree of eviction vide impugned judgment and decree dated 4.9.2015. Against which the instant first appeal has been preferred by the plaintiffs/appellants. 6. Learned counsel for the plaintiffs/appellants submits that although learned Court below has held the lease deed to be inadmissible in evidence for want of requisite stamp duty and its registration, but in view of admitted relationship of landlord and tenant it has no adverse effect and she submits that in view of the affirmative findings recorded by learned trial Court on issue No.2 the plaintiffs were entitled for decree of eviction on the ground under section 12(1)(m) of the Act. 7. 7. Learned counsel for the appellants/plaintiffs further submits that during pendency of instant first appeal, applications (I.A.No.2905/2017 and 2906/2017) under Order 6 rule 17 CPC and Order 41 rule 27 CPC have been filed by the appellants/plaintiffs seeking amendment in the plaint and adducing additional evidence to the effect that the plaintiff 1 is in need of the suit accommodation for his residence and there is no other alternative accommodation available in the township of Jabalpur and after surrendering the United States’ citizenship he has planned to settle in Jabalpur City and he intends to stay in his own house and as such the plaintiffs are entitled for decree on the ground under section 12(1)(e) of the Act. Accordingly, by way of application the plaintiffs have proposed amendment in paragraphs 7 & 8 of the plaint by adding additional paragraphs 7A-B & 8A. 8. Another application under Order 41 rule 27 CPC (IA 5612/2023) with support of certain documents, has also been filed with the contention that now the defendant has left the Jabalpur city and is residing at Bhopal. With these submissions learned counsel submits that the appeal deserves to be allowed and in any case the plaintiffs may be permitted to amend their plaint, and the matter may be remanded back for decision afresh after recording evidence of the parties in respect of proposed amendment and documents. 9. In support of her submissions, learned Counsel for the appellants placed reliance on the decisions in the case of Ramesh Kumar v. Kesho Ram AIR 1992 SC 700 ; Pratap Rai Tanwani and Another v. Uttam Chand and Another (2004) 8 SCC 490 ; and Neetumal v. Dhanvati @ Dwarika and others 2020 (3) M.P.L.J. 427 . 10. Learned counsel for the respondent/defendant submits that although, learned trial Court decided issue No.2 in affirmative holding thereby that the defendant has raised construction on the suit property without permission of the plaintiffs, but even in presence of such findings the plaintiffs are not entitled for decree on the ground under section 12(1) (m) of the Act, because the temporary construction raised by the defendant has not materially altered the accommodation to the detriment of the landlord’s interest or has not diminished its value. Learned counsel for the respondent/defendant submits that even upon recording such finding by learned trial Court, there is no question of granting decree on the ground under section 12(1)(m) of the Act, and in the light of provisions contained in section 12(10) of the Act, the defendant has to be given time to restore the accommodation to its original condition. 11. So far as the application under Order 6 rule 17 CPC and under Order 41 rule 27 CPC are concerned, learned counsel for the respondent/defendant submits that in respect of plot Nos.10, 11 & 12 consolidated lease deed was executed by plaintiffs in favour of the defendant and from paragraph 1 of the plaint it is clear that plaintiff 1 is owner of plot Nos. 10-11 and the plaintiff 2 is owner of plot No.12, which they acquired on the basis of gift deeds executed by their father in the year 1976. He submits that by way of proposed amendment the plaintiffs want suit accommodation to be vacated for residential need of plaintiff 1 only and the tenancy which is joint and indivisible cannot be split up. He further submits that the plaintiffs are holding the property as separate individuals and they being tenants in common, suit cannot be filed for vacating the suit premises for need of plaintiff 1 only. 12. He further submits that on the premise that the defendant has started living at Bhopal and has left the suit premises for more than last six months, the plaintiffs cannot be granted any decree because the ground under section 12(1)(d) cannot be taken by way of amendment and during pendency of the suit, indeed no application for amendment has been filed in that regard. In support of his submissions learned counsel for the respondent/defendant placed reliance on the decisions in the case of The Commissioner of Gift Tax, Kerala v. Smt. R. Valsala Amma (1972) 4 SCC 399 ; Habibunnisa Begum and others v. G. Doraikannu Chettiar (Dead) by LRs and others (2000) 1 SCC 74 ; and Sheela and others v. Firm Prahlad Rai Prem Prakash (2002) 3 SCC 375 . With the aforesaid submissions he prays for dismissal of the first appeal and said applications as well as other pending applications. 13. Heard learned counsel for the parties and perused the record. 14. With the aforesaid submissions he prays for dismissal of the first appeal and said applications as well as other pending applications. 13. Heard learned counsel for the parties and perused the record. 14. In the instant first appeal following points for determination are arising :- (i) Whether in presence of the findings on issue No.2 regarding construction of servant quarter, store room and garage without permission of the plaintiffs, the defendant is liable to be evicted ? (ii) Whether application under Order 6 rule17 CPC deserves to be allowed ? (iii) Whether on the available facts, the plaintiffs can be permitted to take a new ground of eviction under section 12(1)(e) of the Act ? 15. In the present case, undisputedly the defendant was given the suit accommodation for his residence and there is also no quarrel to the fact that he was given possession of the suit property on the basis of a lease deed dated 1.11.2007 executed for a period of 60 months. Although the agreement of lease is not on record, but in view of the admitted execution of lease deed, it has no adverse effect because relationship of landlord and tenant between the plaintiffs and defendant is an admitted fact. 16. While deciding issue No.2 although learned Court below has held that the defendant has just contrary to the lease agreement dated 1.11.2007 raised construction on open area of the suit property on or before 14.3.2009 but refused to pass decree of eviction with the observation that the plaintiffs have failed to prove that the construction raised by the defendant has materially altered the accommodation to the detriment of the landlord’s interest and has also diminished its value. 17. Evidently on the basis of oral evidence adduced by the defendant, learned trial Court has found that the alleged construction is of temporary nature. In para 2 of the plaint it is alleged that plot area 45000 sq.ft. with total built up area 2360 sq.ft. was given on lease and this fact has not been disputed by the defendant in his written statement. Oral evidence has come on record that construction in question had been raised on open area i.e. in excess of already built up area 2360 sq.ft. but in the impugned judgment there is no finding in that regard. was given on lease and this fact has not been disputed by the defendant in his written statement. Oral evidence has come on record that construction in question had been raised on open area i.e. in excess of already built up area 2360 sq.ft. but in the impugned judgment there is no finding in that regard. In the light of admissions of the defendant to the effect that he has raised construction of servant quarter, garage and store room, constructed area and its nature as to whether it is temporary or permanent, was to be clearly disclosed and proved by defendant/tenant himself by producing some map or photographs etc. but there is no such documentary evidence on record, but in spite of this and even after deciding issue No.2 in affirmative, learned Court has dismissed the suit. In my considered opinion, in absence of aforesaid material, even effective order as required under section 12(10) of the Act cannot be passed, which before passing order of eviction, if any, has to be passed compulsorily. As such the matter deserves reconsideration by learned trial Court on the said ground. 18. By way of application under Order 6 rule 17 CPC the plaintiffs have contended that because plaintiff 1 has now permanently shifted to India after surrendering his green card, therefore, the plaintiff 1 is in need of the suit accommodation for his residence as well as for family members and there is no other alternative accommodation available with him in the township of Jabalpur. 19. The application has been opposed by the respondent on the ground that the plaintiffs are tenants in common and the lease was given by them jointly and that the tenancy cannot be split up, therefore, the application under Order 6 rule 17 CPC cannot be allowed. However, he concedes about legal position to the effect that fresh suit can be filed for the bonafide requirement of plaintiff 1 only. 20. In respect of addition of a new ground of eviction in the pending suit, a Full Bench of this Court has, in the case of Chhotelal Bhailal Patel v. Akbar Ali 1982 MPLJ 754 , held as under :- "6. It was, however, urged on behalf of the defendant by Shri Waghmare that the language of section 12(1) of the Act, rules out induction of additional ground for eviction after the institution of a suit for eviction. It was, however, urged on behalf of the defendant by Shri Waghmare that the language of section 12(1) of the Act, rules out induction of additional ground for eviction after the institution of a suit for eviction. The contention cannot be upheld. Section 12(1) of the Act merely provides that no suit shall be filed for eviction except on a ground specified in that section. This restriction on the right to institute a suit for eviction only emphasises that if a suit for eviction were to be brought without disclosing a ground specified in section 12(1) of the Act, then in that case, the plaint would be liable to be rejected for failure to disclose cause of action. There is nothing in the language of section 12(1) of the Act, which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of section 12(1) of the Act. It may, be that in some cases, the requirement of a particular ground specified in section 12(1) of the Act is such as cannot be fulfilled unless that ground has come into existence prior to the filing of the suit, as in the case of a ground specified in section 12(1)(d). But tenability of a ground sought to be added by way of amendment, does not affect the jurisdiction of a Court to permit that amendment. It may be that in such a case, it would be a sound exercise of discretion by the Court, if leave to amend is refused inasmuch as, a decree for eviction cannot be passed on such a ground. But as already observed, this aspect of the matter has no impact on the question of jurisdiction of the Court to permit the plaintiff to amend the plaint by adding a new ground for eviction. Any observation to the contrary which can be read in 1961 MPLJ 7 (supra) or 1980 MPLJ 182 (supra) does not, in our opinion, lay down correct law". 21. A coordinate Bench of this Court in the case of Swami Vivekanand Shishu Mandir v. Smt. Fehmida Begam 2002(1) MPLJ 482 had taken into consideration the aforesaid full Bench decision in the case of Chhotelal Bhailal Patel (supra) and held as under :- “8. 21. A coordinate Bench of this Court in the case of Swami Vivekanand Shishu Mandir v. Smt. Fehmida Begam 2002(1) MPLJ 482 had taken into consideration the aforesaid full Bench decision in the case of Chhotelal Bhailal Patel (supra) and held as under :- “8. The suit accommodation was admittedly let out originally for non- residential purpose and, therefore, the suit for eviction under the scheme of the M.P. Accommodation Control Act, 1961 under section 12(1)(e) of the Act to meet the residential requirement of the landlord was not maintainable. The plaintiff through the proposed amendment wanted to convert the ground for eviction from clause (e) to clause (f) of sub-section (1) of section 12 of the Act. It is well settled after the decision of the Full Bench of this Court in Chhotelal v. Akbarali, 1983(1) RCR(Rent) 505 (M.P.) : 1982 MPLJ 754 that there is nothing in the language of section 12(1) which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of section 12(1) of the Act. Another ground for eviction can be set up by amendment of the plaint. In the present case, the trial Court cannot be said to have exercised its discretion arbitrarily or capriciously in allowing amendment for converting the ground of eviction from Clause (e) to Clause (f). That was in the interest of justice and that would avoid multiplicity of the suits. The opposite-party has been compensated by costs of a substantial amount.” 22. In the case of Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors. (2006) 4 SCC 385 , the Supreme Court has held that at the time of consideration of application under Order 6 rule 17 CPC, correctness or falsity of the proposed amendment cannot be discussed. Relevant paragraph of which is quoted as under :- “28. Since the Court has entered into a discussion into the correctness or falsity of the case in the amendment, we have no other option but to interfere with the order passed by the High Court. Relevant paragraph of which is quoted as under :- “28. Since the Court has entered into a discussion into the correctness or falsity of the case in the amendment, we have no other option but to interfere with the order passed by the High Court. Since it is settled law that the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing prayer for amendment, the order passed by the High Court is not sustainable in law as observed by this Court in Sampath Kumar v. Ayyakannu and Another, (2002) 7 SCC 559 .” 23. In view of the aforesaid discussion and legal position, it is clear that the plaintiffs can take new ground of eviction in the pending suit. As such the application for amendment and adducing additional evidence (I.A.No.2905/2017 and 2906/2017) filed by the plaintiffs proposing new ground of eviction i.e. bonafide requirement of residence of the suit premises for the plaintiff 1 and another application under Order 41 rule 27 CPC (IA No.5612/2023) which are based on subsequent events, deserve to be and are hereby allowed with the direction to learned trial Court to permit the plaintiffs to amend their plaint and to adduce additional evidence as prayed in the applications. 24. Needless to mention that learned trial Court shall permit the defendant to make consequential amendment in the written statement and to adduce evidence in rebuttal, and thereafter, if necessary, shall frame additional issue in that regard and shall decide the suit afresh after giving due opportunity of hearing to the parties. 25. As the suit in question was filed in the year 2009, therefore, it is expected from learned trial Court that it shall take every endeavour to decide the civil suit afresh within a further period not more than 18 months from the date of receipt of copy of judgment passed today by this Court. 26. Pending application(s), if any, shall stand disposed.