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2024 DIGILAW 794 (JHR)

Harbhajan Singh v. Bikram Singh

2024-09-06

SUJIT NARAYAN PRASAD

body2024
JUDGMENT : Sujit Narayan Prasad, A.C.J. 1. This writ petition has been filed under Article 227 of the Constitution of India challenging the order dated 06.06.2024 passed by learned Additional Civil Judge (Jr. Div.), Jamshedpur in Eviction Suit No.10 of 2023, whereby and whereunder the petition filed by the petitioners/defendants under Order VI Rule 17 of the CPC has been rejected declining them to insert a new paragraph in the written statement being paragraph no.22(a) for making addition that the plaintiff during pendency of the suit has converted two shops into one shop and let out the said shop to a tenant named “Puja Confectionary” and the aforesaid business of Puja Confectionary was formally inaugurated on 05.02.2023. 2. The brief fact as per the pleadings made in the writ petition needs to be referred herein. 3. It is evident from the factual aspect that a suit for eviction has been filed by the plaintiff/respondent under the provision of Section 11(1)(c) of the Jharkhand Building (Lease, Rent & Eviction) Control Act, 2000. The Eviction Suit has been filed mainly on two grounds – first is the personal necessity and second is default in making of payment of rent. 4. The petitioners/defendants have filed written statement wherein the very relationship of landlord-tenant has been disputed. Subsequent to filing of the said written statement, by way of subsequent development, the plaintiff has converted two shops into one shop and let out the same to one Puja Confectionary which was inaugurated on 05.02.2023. The petitioners/defendants want to bring the aforesaid facts on record by insertion of new paragraph in the written statement being paragraph no.22(a). 5. The said issue has been considered by the learned Trial Court and on consideration of the fact that the petitioners/defendants have disputed the very title of the plaintiff for which the Court is to see the issue of payment of rent by the tenant, has rejected the said petition which led to filing of the present petition under Article 227 of the Constitution of India. Submission of the learned counsel for the petitioner 6. Ms. Neeharika Mazumdar, learned counsel appearing for the petitioners/defendants, has submitted that the impugned order suffers from error on the ground that the insertion which has been sought to be made by filing petition under Order VI Rule 17 of the Civil Procedure Code (CPC) has not been properly considered. 7. Submission of the learned counsel for the petitioner 6. Ms. Neeharika Mazumdar, learned counsel appearing for the petitioners/defendants, has submitted that the impugned order suffers from error on the ground that the insertion which has been sought to be made by filing petition under Order VI Rule 17 of the Civil Procedure Code (CPC) has not been properly considered. 7. It has been submitted that the ground of personal necessity is also one of the grounds in addition to default in payment of rent. The submission has made that in order to disprove the ground of personal necessity, the amendment sought to be incorporated in the written statement is necessary to be incorporated, since, during pendency of the trial, two shops have been converted into one shop and has been sublet in favour of one Puja Confectionary and, hence, whatever ground has been taken regarding personal necessity, cannot be said to be proper. 8. The learned counsel based upon the aforesaid grounds has submitted that since letting out of the aforesaid shops in favour of Puja Confectionary being the subsequent cause of action and it is relevant to disprove the ground of personal necessity, but without taking into consideration the aforesaid fact, the petition filed under order VI rule 17 has been rejected, therefore, the present writ petition. Analysis 9. This Court has heard the learned counsel for the petitioners and gone across the finding recorded by the learned trial court in the impugned order. 10. It is evident from the factual aspect that dispute for eviction has been filed on the two grounds. First is the personal necessity and second is default in making payment of rent. 11. The defendants/ petitioners have filed written statement and have taken the ground by disputing the very title of the plaintiff so as to disprove the ground of eviction, but the petition has been filed under Order VI Rule 17 CPC during pendency of the trial, which has occasioned, as per the petitioners, due to subsequent development of letting out of the shops after conversion of two shops into one shop in favour of Puja Confectionary. 12. The petitioners in view of the aforesaid subsequent development have filed the petition under Order VI Rule 17 CPC for insertion of the aforesaid ground/statement in the written statement as paragraph 22(a). 13. 12. The petitioners in view of the aforesaid subsequent development have filed the petition under Order VI Rule 17 CPC for insertion of the aforesaid ground/statement in the written statement as paragraph 22(a). 13. The said petition has been rejected by the learned Trial Court by citing the reason that since the main ground has been taken by the petitioners/defendants by disputing the title of the plaintiff which can only be decided by taking into consideration the fact of payment/ acceptance of rent by the petitioners/defendants. 14. Thus, the issue involve in this case is the legality and propriety of the order passed by the learned trial Court wherein the petition filed under Order VI Rule 17 seeking therein the proposed amendment has been rejected. 15. This Court, in order to appreciate the ground as has been taken on behalf of petitioners, deems it fit and proper to refer the provision of Order VI Rule 17 CPC, which reads as under: “Order VI Rule 17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 16. It is evident from the provision of Order VI Rule 17 CPC that amendment is normally to be allowed but subject to certain conditions i.e., no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 17. Consideration of the scope of Order VI Rule 17 has been taken into consideration by the Hon’ble Apex Court in the case of J.J. Lal Private Limited & Ors Vs. M.R. Murali & Anr. [ (2002) 3 SCC 98 ]. In the aforesaid judgment the Hon’ble Apex Court has been pleased to consider the judgment rendered in case of Majalti Subbarao Vs. M.R. Murali & Anr. [ (2002) 3 SCC 98 ]. In the aforesaid judgment the Hon’ble Apex Court has been pleased to consider the judgment rendered in case of Majalti Subbarao Vs. P.V.K. Krishna Rao (deceased) by LRs [ (1989) 4 SCC 732 ] wherein the eviction case was filed under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 on the ground of bona fide requirement of the landlord. In the written statement, the tenant denied the title of landlord which was sought to be made a ground for eviction submitting that such denial made out a ground for eviction under Section 10(2)(vi) of the Andhra Act. 18. The Hon’ble Apex Court has rejected the argument on the ground that the denial of title must be anterior to the proceedings for eviction and held that even a denial of a landlord's title by the tenant in the written statement in an eviction petition under the Rent Act furnishes a ground for eviction and can be relied upon in the very proceedings in which the written statement containing the denial has been filed. 19. The reasoning which was considered by the Hon’ble Apex Court in the case of J.J. Lal Private Ltd. (supra) is that to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of character as a tenant in the written statement. 20. The Hon’ble Apex Court dealt with the aforesaid ground of denial by holding that normally this would have been so but, in the present case, the Hon’ble Apex Court finds that the trial court, namely, the Rent Controller, framed an issue as to whether the tenant's denial of the landlord's title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. 21. For ready reference paragraph 12 of the aforesaid judgment is quoted as under: “12.We may straightaway refer to a decision of this Court in Majati Subbarao v. P.V.K. Krishna Rao [ (1989) 4 SCC 732 ] which was a case under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. Eviction petition was filed on the ground of bona fide requirement of the landlord. In the written statement, the tenant denied the title of landlord which was sought to be made a ground for eviction submitting that such denial made out a ground for eviction under Section 10(2)(vi) of the Andhra Act. This Court, rejecting the argument that the denial of title must be anterior to the proceedings for eviction, held that even a denial of a landlord's title by the tenant in the written statement in an eviction petition under the Rent Act furnishes a ground for eviction and can be relied upon in the very proceedings in which the written statement containing the denial has been filed. The reasoning which appealed to this Court was that to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of character as a tenant in the written statement. The submission of the learned counsel for the tenant was that in any event the landlord had failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do in order to get relief on that ground which had arisen after the eviction petition was filed. This Court held: (SCC p. 738, para 6) “We agree that normally this would have been so but, in the present case, we find that the trial court, namely, the Rent Controller, framed an issue as to whether the tenant's denial of the landlord's title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.” 22. The Hon’ble Apex Court in the aforesaid judgment has further considered the issue involved in the Om Prakash Gupta Vs. Ranbir B. Goyal [ (2002) 2 SCC 256 ], wherein it has been pleased to hold that the ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. 23. Such subsequent event may be one purely of law or founded on facts. 24. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. 25. In the later case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. 26. For ready reference, paragraph 13 of the judgment is quoted as under: “13. Recently in Om Prakash Gupta v. Ranbir B. Goyal [ (2002) 2 SCC 256 ] while dealing with power of the court to take note of subsequent events and then to grant, deny or modify the relief sought for in the plaint, this Court has held: (See pp. 262-63, paras 11-12) “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. 262-63, paras 11-12) “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. *** 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties.” 27. The Hon’ble Apex Court in the case Raj Kumar Gurawara (dead) through its LRs vs. S.K. Sarwagi and Company Private Limited & Anr. [ (2008) 14 SCC 364 ] has laid down the proposition for the purpose of allowing the petition filed under Order VI Rule 17 in case certain conditions namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. 28. 28. For ready reference, paragraph 18 of the judgment is quoted as under: “18. Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10-3-2004 of the Additional District Judge.” 29. The similar view has been reiterated by Hon’ble Apex Court in the judgment rendered in Revajeetu Builders and Developers vs. Narayanaswamy and sons and Ors., (2009) 10 SCC 84 . Relevant paragraph -63 reads as under: “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 30. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 30. Thus, it is evident that the Hon'ble Apex Court has laid down the following conditions for amendment: (i) when the nature of the suit is not changed; (ii) when the amendment would not result in introducing new cause of action and intends to prejudice the other party; (iii) when defeats the law of limitation, if fresh suit of amendment plaint would be passed; (iv) when there is a general rule, it would be rejected but to avoid multiplicity it can be allowed. (v) Further, it is settled position of law that the amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. Reference in this regard may be taken from the judgment rendered by the Hon’ble Apex Court in Usha Baleshaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors [ (2007) 5 SCC 602 ] wherein it has been held as under: “19. It is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.” 31. This Court, in order to appreciate the aforesaid legal position as to whether either of the condition is applicable in the instant case has gone across pleadings available on record as also the finding recorded by learned trial Court. 32. In the instant case the fact about the dispute of the claim of the plaintiff regarding his title over the suit property is not in dispute. It is evident from the written statement itself wherein stand has been taken while rebutting the stand of the plaintiff as has been pleaded in the plaint. 32. In the instant case the fact about the dispute of the claim of the plaintiff regarding his title over the suit property is not in dispute. It is evident from the written statement itself wherein stand has been taken while rebutting the stand of the plaintiff as has been pleaded in the plaint. The question, therefore, is when the issue of title itself has been disputed, then in such circumstances, the subsequent reason of disputing the claim of personal necessity is unwarranted. The same is the question to be considered herein. 33. It cannot be disputed that if the Trial Court comes to the conclusion about the title of the plaintiff said to be not owned with respect to property in question, then the Eviction Suit will be dismissed holding therein that there is no relationship of landlord and tenant. Therefore, it is admitted fact that the ground of dispute of title has been taken by the petitioners/defendants in the written statement, but in addition to that, the ground has been sought to be inserted in order to dispute the ground of personal necessity. The same has been discarded while rejecting the said petition. 34. This Court has considered the reason assigned by the learned Trial Court and found that the issue of title has been taken into consideration by the learned Trial Court and a reason has been assigned that for the purpose of proving title, only requirement to be considered is the payment of rent by the petitioners/defendants. 35) It is, thus, evident that the learned Trial Court has taken into consideration the ground taken on behalf of the petitioners/defendants in the written statement that when the issue of title itself has been disputed, then, there would be no question of eviction. This Court is of the view that the stand since has been taken regarding disputing the title and as such, the consideration of a ground of personal necessity for which the petition has been filed under Order VI Rule 17 CPC to establish the fact that the plaintiff is having no necessity of the shop cannot be said to be a ground for answering the issue by the learned Trial Court. The learned Trial Court on the basis of the same since has rejected the said petition and, as such, this Court of the view that the same does not suffer from an error. 36. The learned Trial Court on the basis of the same since has rejected the said petition and, as such, this Court of the view that the same does not suffer from an error. 36. This Court considering the proposition propounded by Hon’ble Apex Court as discussed above and particularly taking into consideration the reason as assigned by the trial court while not allowing the amendment petition is of the view that interference is not required in the impugned order. 37. Thus, on the basis of the aforesaid discussion the order passed by learned trial cannot be said to suffer from an error. 38. Since the instant petition has been filed under Article 227 of the Constitution of India thus this Court also intends to go through the scope of Article 227 of the Constitution of India. 39. Dealing with the scope of Article 227 of the Constitution of India, Hon’ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limitless power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 40. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 41. 40. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 41. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 42. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohan singh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 43. On the basis of the discussion made herein above and taking in to consideration of settled connotation of law, it is the considered view of this Court that the trial court has not committed any error in passing the impugned order dated 06.06.2024 warranting interference by this Court under Article 227 of the Constitution of India. 44. Accordingly, the Civil Miscellaneous Petition, being devoid of any merit, is hereby dismissed