Mohanlal Bhagwandas vs Ishwarlal Ambaram - Died During ... on 6 May, 2014

[Cites 11, Cited by 0]

Gujarat High Court

Mohanlal Bhagwandas vs Ishwarlal Ambaram - Died During ... on 6 May, 2014

Equivalent citations: 2014 AIR CC 2666 (GUJ), (2015) 148 ALLINDCAS 482 (GUJ) (2014) 3 GUJ LR 2685, (2014) 3 GUJ LR 2685

1. The petitioner is a tenant. The landlord had filed a suit i.e. Regular Civil Suit No.272 of 1984 before the learned Additional Small Causes Court, Surat. During the pendency of the said suit, plaintiff had sought an amendment that petitioner - tenant had acquired suitable alternate accommodation and therefore, the plaintiff is entitled to obtain vacant possession of the suit premises on the ground of Section 13(1)(l) of the Bombay Rent Act. Then after the evidence was led by the parties and at the stage of final hearing, the plaintiff moved an application for amendment, whereby the plaintiff sought to introduce the ground of non- user and had prayed for eviction of the suit premises on the additional ground of non-user i.e. Section 13(1)(k) of the Act. The said amendment was allowed by the trial court. Hence, the present petition.

2. Heard learned advocate Mr.Mrugen Purohit for the petitioner and learned advocate Ms.K.J.Brahmbhatt for the respondent.

3. This Court on 16.3.2009, while admitting the present petition, has passed the following order :

"Heard Mr. H.S. Mulia, learned counsel appearing for the petitioner.

Notice for final disposal, returnable on 9th April, 2009. In the meanwhile, if the learned trial Judge decides the suit, then, the same shall not be dealt with in reference to prayer made for eviction on the ground available to the landlord to evict the tenant under Section 13[1] [k] of the Bombay Rent Act. Direct service permitted."

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C/SCA/2327/2009 JUDGMENT

4. Thus, the trial court has proceeded to decide the suit on the ground other than the ground of Section 13(1)(k) of the Act. Accordingly, the trial court had dismissed the suit. It was submitted at the time of hearing that appeal is pending against said judgment before the District Court.

5. The suit property is situated at Rudarpura, Kharwawad, Surat. It is in Ward No.2. The petitioner was given the suit property at a monthly rent of Rs.100/-. It is the say of the respondent - landlord that initially, the suit property was given for business purpose only. However, the petitioner had started to use the suit property for residential purpose also. It is interesting to note that the plaintiff has filed a suit for declaration and injunction. In fact, initially the suit was filed as the petitioner sought to carry out - it is alleged - some alteration of permanent nature in the tenanted property by removing kaccha wall. The respondent had filed a suit seeking injunction to the effect that petitioner may be restrained from removing kaccha wall in the suit property and may also be restrained from placing pakka wall therein. The respondent has also sought a declaration in this regard. Then, during the pendency of the said suit, respondent has introduced Ground 3(A) in the plaint and has sought an amendment on the ground that the petitioner has acquired alternate suitable accommodation. The plaintiff has also sought relief of eviction on this ground. The present amendment with which we are concerned is at Exh.409 which is moved by the plaintiff on 9.1.2009.

6. In fairly detailed order, the trial court has allowed the Page 3 of 13 C/SCA/2327/2009 JUDGMENT amendment mainly on two grounds; (i) proviso to Order 6 Rule 17 introduced in 2002 by Amendment is not applicable to the present case and (ii) there is evidence on record on the point of non-user. The trial court has held that though there was no pleading, both the parties had led the evidence of non- user. Holding so, it had allowed the amendment.

7. Learned advocate Mr.Purohit has submitted that plaintiff has introduced Ground 3(A) and has sought eviction on the ground of Section 13(1)(l) of the Act in 1997. It was submitted that plaintiff could have applied for eviction on the ground of non-user i.e. Section 13(1)(k) of the Act at the time of filing of earlier application or soon after that. That filing of the application at such a belated stage would seriously prejudice the petitioner. Mr.Purohit has drawn attention to a decision in the case of Shiv Gopal Sah alias Shiv Gopal Sahu v. Sita Ram Saraugi & Ors., reported in AIR 2007 SCC 1478, Rajkumar Gurawara (Dead) Thr. L.R.s v. M/s. S.K.Sarwagi & Co. Pvt. Ltd. & Anr., reported in AIR 2008 SC 2303 and South Konkan Distilleries and Anr. v. Prabhakar Gajnan Naik and Ors., reported in (2008) 14 SCC 632.

8. On the other hand, learned advocate Ms.K.J.Brahmbhatt for the respondent has supported the order under challenge. It was submitted that initially the suit property was let out to the petitioner only for the business purpose. However, as the petitioner's business has expanded, the other family members joined the petitioner and they also started to reside at the Page 4 of 13 C/SCA/2327/2009 JUDGMENT tenanted premises. It was also submitted that ground of non- user came only in 2008 and therefore, filing of the application for amendment by the plaintiff - when the suit was pending - was just and proper and order of the trial court does not call for any interference. Learned advocate for the respondent has drawn attention to a decision in the case of Pankaja and Anr. v. Yellappa (Dead) by LRs and Ors., reported in (2004) 6 SCC 415, Ganpat Lal Gupta and Ors. v. Vth Additional District Judge, Deoria District and Ors., reported in 2003 AIHC 4870 (Allhabad), Potnuru Lakshmana Rao v. Potnuru Babu Rao (died) by LRs., reported in 2001 AISC 2814 and in case of Shanabhai Mangabhai Patel v. Bhagwandas Revabhai Patel and Ors., reported in 1990 (1) GLH 403.

9. The finding of the trial court that proviso introduced by 2002 amendment in Order 6 Rule 17 does not apply to the present case because the suit is of 1984, is proper and legal.

In order to consider whether the trial court has committed any error in allowing the present application, let us consider the case law relied on by learned advocate for the parties.

10. In Shiv Gopal Sah's case (supra), attention was drawn to Para.9, 10, 11, 12 and 18. In that case also, plaintiff had filed a suit for eviction. The amendment sought to be introduced was rejected only on the ground of delay. In that case, suit was instituted by plaintiff in 1986. The say of the defendant therein was that the defendant has purchased the entire property including the tenanted property by executing sale Page 5 of 13 C/SCA/2327/2009 JUDGMENT deed in 1985 i.e. prior to institution of the suit. The suit then was converted into title suit. The original defendant had expired and LRs of the defendant were brought on record. On the other hand, pending the suit, plaintiff has also transferred the property. Transferee were added as co-plaintiff. At the end of 2004, amendment application was moved contending that sale deed on which the original defendant places reliance is sham and bogus one. Challenging the sale deed after a lapse of 15 years was disapproved by the Supreme Court. The Supreme Court disallowed the Amendment sought by the plaintiff.

11. Learned advocate Ms.Brahmbhatt for the respondent, in support of the submission that order under challenge does not require interference, has submitted that subsequent development has taken place during the pendency of the suit and therefore, filing of the amendment application by the plaintiff is just and proper. Ultimate test is whether the amendment subserves the cause of justice or not and further litigation is possible to avoid or not. In support of this, reliance was placed on Pankaja's case (supra). Head Note of the said judgment reads as under :

"Civil Procedure Code,1908 - Or.6 R.17 - Amendment of plaint - Discretion of court to allow, even where the relief sought to be added by amendment is allegedly barred by limitation - Scope and manner of exercise of - Held, there is no absolute rule that amendment in such a case should not be allowed - Court's discretion in that regard depends on the facts and circumstances of the Page 6 of 13 C/SCA/2327/2009 JUDGMENT case and has to be exercised on a judicious evaluation thereof - An amendment subserving the ultimate cause of justice and avoiding further litigation should be allowed - In the present case, the plaintiff filing a suit seeking possession of suit property - Six years later, plaintiff filing an application to amend the plaint to seek also the relief of declaration of the plaintiff's ownership of that property - Defendant opposing the amendment application alleging that in view of Art.58, Limitation Act, the said application was barred by limitation - Plaintiff disputing the defendant's application and contending that in view of Art.64 or Art.65 the Amendment sought by him was within limitation - In such circumstances the courts below, held, erred in rejecting the amendment application without considering the said controversy - Moreover, necessary factual basis in regard to the title having already been laid down in the plaint, although controverted by the defendant in his written statement, held, the courts below further erred in holding that the grant of permission to amend the plaint would amount to introduction of a relief different from that sought in the plaint - Hence, amendment allowed and the trial court directed to frame necessary issue in that regard and hence decide the same keeping in view the law laid down in L.J. Leach and Co. Ltd. case, AIR 1957 SC 357 - Limitation Act,1963, Arts.58, 64 and 65."

11.1 Relevant discussion in Para.14 of the said judgment is, thus;

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C/SCA/2327/2009 JUDGMENT "14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."

12. Thus, in Pankaja's case (supra), the Court has held that amendment need not be disallowed only on the ground of limitation.

13. In this regard, it may be stated that learned advocate Mr.Purohit has pointed out that Pankaja's case (supra) is considered by the Supreme Court in South Konkan Distilleries's case (supra). Learned advocate has drawn attention to Para.21 of the said judgment, which reads as under :

"21. It was next argued by the learned counsel for the appellants that since it is well settled that the Court should be extremely liberal in granting amendment, Page 8 of 13 C/SCA/2327/2009 JUDGMENT provided the same was within the period of limitation or there would be an arguable issue with regard to the point of limitation, the courts below ought to have allowed the amendment of the written statement and the counter claim and thereby raised an issue on the question whether the amended claim of the appellants was barred by the law of limitation. In support of this submission, reliance was placed in the case of Pankaja and Anr. Vs. Yellappa [Dead] By LRs and Ors. [ (2004) 6 SCC 415]. There is no quarrel about the proposition of law that was submitted by the learned counsel for the appellants. In any view of the matter in that decision, namely, Pankaja and Anr., the question of limitation was found to be arguable issue and on that ground this Court allowed the amendment and the trial court was directed to frame necessary issue on the question of limitation and decide the same keeping in view the law laid down in L.J. Leach's case [supra]. But in the present case, we are in full agreement with the courts below that there was no dispute on the question of limitation. Therefore, it cannot be said that the point of limitation was an arguable one and the same should be decided by raising an issue at the time of disposal of the suit."

14. In the present case, exercise of discretion in favour of plaintiff by the trial court does not appear to be proper. Admittedly, the amendment application was moved at the stage of final hearing. The trial court has taken the view that parties have led the evidence on this issue. The issue is - non user of the premises. At the time of hearing, learned advocate Page 9 of 13 C/SCA/2327/2009 JUDGMENT Ms.Brahmbhatt for the respondent has referred to the panchnama and has urged that Panchnama would show that suit property is not in use. It is not clear that besides the panchnama, there is any other material on record or not. Learned advocate for the petitioner was right in urging that petitioner was not aware at any time including at the time of recording the evidence that petitioner has to face the issue of non-use of premises of also.

15. If we refer the amendment application, it would appear that plaintiff has not come forward with clear and specific assertion in the application. That clear and specific assertions ought to have been made by the plaintiff particularly when application is moved at such a belated stage. Besides that the cause of action as stated in the suit originally instituted for declaration and injunction is somewhat inconsistent with the prayer of eviction. On this ground alone, petition requires to be allowed. As stated above, originally the plaintiff had instituted a suit for injunction and also prayed for declaration. Cause of action stated in the suit, thus;

"s#f VF NFJFG]\ SFZ6 VF SFDGF 5|lTJFNLV[ NFJFJF/L lD,STGL 50BFGL lNJF, H[ JF\; SFD/FGL K[4 T[ U.SF,[ ;F\H[ TFP !5q$q!)($ GF ZMH SF-JFGL SMlXQF SZL tIFZ[ VG[ S[8,LS SFD/FGL lNJF, SF-L GFBL tIFZ[ VG[ T[ AFN GFDNFZ SM8" GL CS]DTDF\ pt5gG YI]\ K[P ;AA NFJFG[ D]NTGM AFW GYLP"

16. Originally the relief claimed reads, thus;

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C/SCA/2327/2009 JUDGMENT "!P XC[Z ;]ZTDF\ Z]NZ5]ZF4 BFZJFJF0GF ,TFDF\ VFJ[, JM0"G\P Z4 GM\W G\P Z_Z5 TYF Z_Z& YL GM\WFI[,L lD,STGL ;F.0GL SFD/FGL lNJF, SF-L GF\B[4 G\BFJ[ GCL\ S[ DHS]Z lD,STGF .\8 R6TZGL lNJF, SZ[4 SZFJ[ GCL S[ lD,STGL l:YlTDF\ SM.56 O[ZOFZ SZ[4 SZFJ[ GCL\ S[ DHS}Z lD,STDF\ SM.56 HFTG]\ 5FS]\ HFY]SG]\ R6TZG]\ AF\WSFD SZJF4 SZFJJF CS S[ VlWSFZ GYL T[J]\ HFC[Z SZM TYF 5|lTJFNL DHS]Z l\D,STGL ;F.0GL SFD/FGL lNJF, pTFZL 5F0[4 50FJ[ GCL\ VG[ .\8 R6TZGL 5FSL lNJF,M AGFJ[ GCL\ S[ lD,STGL CF,GL l:YlTDF\ SM. HFTGM O[ZOFZ SZ[ SZFJ[ GCL T[JM HFY]SGM DGF. C]SD VF5MP"

16.1 It would appear that cause of action has no relation, nexus or bearing to the case of non-user. It is settled principle that amendment of plaint which alters the cause of action of the suit instituted originally, such amendment cannot be allowed. Herein totally new cause of action sought to be introduced by the plaintiff. The suit as originally instituted by the plaintiff is one under the Specific Relief Act. The jurisdiction of court considering the relief of declaration and injunction and the court exercising jurisdiction in cases of eviction of a tenant are too distinct and different jurisdiction. In a given case, exercise of both the jurisdictions by one court in one case may not be erroneous. It depends. Herein the alleged cause of action for the declaration and injunction said to have arisen on 15.4.1984, while case of eviction on the ground of non-user of premises was sought to be introduced, Page 11 of 13 C/SCA/2327/2009 JUDGMENT after recording the evidence, as late as in 2009. Such a move of the plaintiff to put forward new case - cannot be countenanced.

16.2 Key to the question, - as this case shows - is to consider how cause of action is pleaded in the suit. Drafting is an art. Much, if not all, depends on how it is pleaded. Scope of expanding and the permissible limit of altering the case via amendment would also depend on cause of action stated in original suit. Elasticity of cause of action would be enhanced by liberal approach of the Court in amendment of plaint, however, the Court cannot travel beyond the law. Further, something that cannot go back to its length and shape cannot be stretched. It does not work - in science and in law. In general, it can be said that those amendments which seek to amplify or which is just an incidental to the original cause or the amendment that seeks to explain or elaborate the main cause of action would be allowed by the Court. Apparent mismatch of cause of action - qua intended introduction of ground of eviction with original suit for declaration - in the circumstances of the case - would persuade the court to disallow the amendment.

17. In view of the above discussion, granting of amendment application in the circumstances is not proper. Therefore, the order of the trial court below Exh.409 allowing the amendment application is hereby quashed and set aside. Petition is allowed. Rule is made absolute accordingly.




                                                           (R.D.KOTHARI, J.)


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         C/SCA/2327/2009                   JUDGMENT


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