Patna High Court
Ashok Kumar Saw vs Smt. Yashomati Devi on 27 February, 1998
Equivalent citations: 1998(2)BLJR1199
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This Civil Revision application is directed against the order dated 15.12.1997 passed by the Munsif, Khunti, in Eviction Title Suit No. 5 of 1995, whereby the application filed by the defendant-petitioner under Order VI, Rule 17 of the Code of Civil Procedure has been rejected and prayer for amendment of the written statement was refused.
2. The facts relevant for the purpose of deciding the question are that the plaintiff-opposite party filed Eviction Title Suit No. 5 of 1995 before the Court of Munsif, Khunti, for eviction of the defendant-petitioner from the suit premises on the ground of personal necessity for her son for engaging him in business in the suit premises. The defendant-petitioner contested the suit by filing written statement. The learned Munsif after hearing the parties, decreed the aforesaid suit in terms of the judgment and decree dated 24.6.1996. The defendant-petitioner aggrieved by the judgment and decree filed Civil Revision application being C.R. No. 320 of 1996 (R) under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. This Court in term of the judgment and order dated 14.1.1997 affirmed the findings of the trial Court on the issue of personal necessity but remitted the case to the Court below on a limited question whether the partial eviction of the suit premises will serve the need of the plaintiff. After remand the parties led evidence as directed by this Court but in the meantime an application was filed by the defendant-petitioner under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the written statement by introducing certain subsequent event allegedly took place i.e., the plaintiff's husband recovered possession of one shop premises from his tenant where the plaintiff's son would be settled in the business and, therefore, the personal requirement of the plaintiff, if any vanished. The said amendment was opposed by-the plaintiff-opposite party by filing a rejoinder. The learned Munsif after hearing the parties passed the impugned order and rejected the amendment petition filed by the defendant-petitioner and hence this civil revision.
3. Mr. P.K. Prasad, learned Counsel appearing on behalf of the petitioner assailed the impugned order passed by the Court below as being illegal and without jurisdiction. Learned counsel submitted that the Court below misdirected itself in law in rejecting the petition for amendment of the written statement. According to the learned Counsel even if the matter was pending before the Court below for deciding limited question of partial eviction, the Court below was bound to take notice of the subsequent event and amendment sought for ought to have been allowed. The learned Counsel relied upon the decisions of the Supreme Court reported in the case of H. Shiva Rao v. Ceilia Pereira and in the case of Kshitish Chandra Base v. Commissioner of Ranchi and also a decision passed in C.R. No. 148 of 1995 (R).
4. On the other hand, learned Counsel appearing on behalf of the opposite party submitted that the petition for amendment of the written statement filed by the defendant-petitioner was frivolous and mala fide with the sole object to linger the disposal of the suit and has drawn by attention towards the order passed by this Court in Civil revision and various orders passed by the Court below on the interlocutory applications filed by the defendant. Learned Counsel further submitted that after the case was remanded to the Court below for deciding the issue of partial eviction, the defendant made unnecessary delay in the matter of adducing evidence. After the plaintiff closed his case, the defendant filed an application for appointment of a pleader commissioner which application was rejected. The defendant moved this Court in civil revision which was also dismissed. Then the petitioner filed a transfer petition before the District Judge for transfer of the suit from the Court of munsif to another Court which application was dismissed. After having no other way out to linger the disposal of the suit, the defendant examined some witnesses and then filed amendment petition. The learned Counsel, therefore, submitted that the Court below has rightly rejected the amendment petition filed by the defendant-petitioner.
5. Before appreciating the rival contentions made by the learned Counsel for the parties, first of all I wish to discuss the ratio of the decisions relied upon the learned Counsel for the petitioner. In the case of H. Shiva Rao (supra), the question falls for consideration before the Apex Court was whether eviction decree obtained by the landlord in respect of the suit premises prior to the date when the Rent Control Act was made applicable to the area where the suit premises situates can be executed by against the tenant? Apex Court held that the Rent Control Legislations being beneficial to the tenant have to be given liberal interpretation. While ordinarily substantive rights should not be held to be taken away except by express provision, or clear implication in the case of Rent control Act, it being a beneficent legislation the provision which confers immunity to the tenant against the eviction by the landlord though prospective in form operates to take away right vested in the landlord by a decree of a Court which has become final, unless there is express provision or clear implication to the contrary. In my opinion, the principle laid down by the Apex Court has no application in the present case.
6. In another case of Kshitish Chandra Bose v. Commissioner of Ranchi (supra), the question before the Apex Court for consideration was whether interlocutory order can be challenged as illegal in appeal from final order. It was held that where the High Court in the second appeal though having no jurisdiction illegally reversed the concurrent finding of fact and ordered remand, the aggrieved party can in appeal to the Supreme Court from the final order of the High Court after remand challenge even first order of the 'High Court making remand and all the proceedings taken thereafter as a result of illegal order of remand. I have failed to understand how the decision will help the petitioner in the facts and circumstances of this case. The petitioner then relied upon another unreported judgment and order of a Single Judge of this Court passed in Civil Revision No. 148 of 1995. In that case, the decree for eviction on the ground of personal necessity was challenged in civil revision and the matter was remanded back to the trial Court for deciding the issue of partial eviction. When the matter was pending before the trial Court after remand, the defendant-tenant filed a petition for amendment of the written statement for inclusion of the fact of coming in occupation of the landlord to some other tenanted premises. The said prayer for amendment of the written statement was rejected by the trial Court but this Court allowing the civil revision held that such amendment is having direct nexus of the cause of action of the suit and the said amendment will not change the nature of the suit. Therefore, the same should be allowed. In my opinion, the facts of that case is not similar to this case. As noticed above, in the instant case a decree for eviction on the ground of personal necessity was passed by the Court below oh 1.7.1996. The defendant-petitioner challenged the judgment and decree by filing Civil Revision No. 320 of 1996 (R). The Civil Revision application was heard and finally disposed of by the judgment and order dated 14.1.1997. This Court affirmed the issue of personal necessity of the plaintiff, but remanded the matter to the Court below for deciding the issue of partial eviction. For better appreciation of the matter, paragraph 13 of the impugned judgment is quoted herein below:
So, after consideration of the entire submission of the learned lawyer for both the parties and in view of the discussions made above, this revision application is allowed on a limited point as indicated above and the case is remanded back to the Munsif, Khunti, with this direction that he will allow the parties to adduce evidence only on the limited point if partial eviction from the suit premises will serve the need of the plaintiff and his son and tenant is also willing to occupy the portion of the shop as a tenant and he should record a finding on this point afresh preferably within three months from the date of receipt of the order. So this revision is allowed in the manner indicated above, but both the parties will bear their own costs.
7. From the operative party of the judgment it is clear that the Court below was directed to record a finding of partial eviction after giving opportunity to the parties to adduce evidence and dispose of the same within three months. From the impugned order it appears that after remand the defendant-petitioner took sixteen adjournments in the Court below on the ground that he will prefer Special Leave petition before the Supreme Court against the judgment passed in C.R. No. 320 of 1996 (R). However, the trial Court ultimately refused to grant any adjournment and recorded evidence of the witnesses produced by the plaintiff-opposite party and the plaintiff's evidence was closed and the suit was fixed for evidence on behalf of the defendant-petitioner. Instead of examining the witnesses the defendant filed an application on 29.7.1997 for appointment of a pleader Commissioner for local inspection. The said application was rejected by the Court below and against that order the petitioner again moved this Court by filing C.R. No. 284 of 1997 (R). This Court dismissed the aforesaid Civil Revision on 16.9.1997 by making following observation:
Only because a petition was filed for local inspection by appointment of a Pleader Commissioner the petitioner cannot get himself equipped not to produce the witness before the Pleader Commissioner is appointed. It means and infers that the defendant is trying to delay the proceedings. However, then on the remand order, there was specific direction for consideration of partial eviction and to dispose of the matter within three months, the defendant can be given a chance to adduce his witness, if he deposits an amount of Rs. 250/- towards cost for his laches and then proceed to dispose of the matter.
8. Curiously enough after the order passed by this Court the petitioner did not adduce evidence rather moved to the Judicial Commissioner, Ranchi, by filing Misc. Case No. 160- of 1997 for the transfer of the suit from the Court of Munsif to any other Court. The transfer petition, however, was subsequently not pressed and rejected on 19.9.1997. Even thereafter the petitioner did not produce any witness, rather after about two months i.e., on 19.11.1997 a petition for amendment of the written statement was filed. In the light of the facts stated herein before, the question, therefore, falls for consideration is whether the proposed amendment even if does not change the nature and character of the suit and has direct nexus with the cause of action could be allowed. In my opinion, such petition for amendment of the written statement must be held to be mala fide causing prejudice and injustice to other party. As noticed above, this Court in Civil Revision No. 320 of 1996 (R) decided on 14.1.1997 directed the Court below to decide the question of partial eviction within three months. It was because of delaying tactics of the defendant-petitioner the suit could not be disposed of within three months rather the defendant-petitioner succeeded in lingering the disposal of the suit and harassing the petitioner for about one year and ultimately the petitioner failed in his attempt to further linger the suit, the petition for amendment of the written statement was filed. Even assuming that the facts stated in the amendment petition is correct, had the suit been disposed of within three months from the date of the remand order passed by this Court, the plea would not have been available to the petitioner. In my opinion, therefore, even if the facts and subsequent event sought to be introduced by the party by way of amendment has direct nexus with the cause of action it should not be allowed if the amendment petition is mala fide and conduct of the party is not fair.
9. Having regard to the facts and circumstances of the case I am of the opinion that the learned Court below has rightly rejected the prayer of the petitioner for amendment of the written statement. There is, therefore, no merit in this revision petition which is, accordingly, dismissed.