Calcutta High Court (Appellete Side)
Samir Kumar Kundu vs Smt. Dipali Roy And Others on 13 November, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No.3022 of 2019
Samir Kumar Kundu
Vs.
Smt. Dipali Roy and others
For the petitioner : Mr. Aniruddha Chatterjee,
Mr. Kushal Chatterjee,
Mr. Debabrata Roy
For the opposite parties : Mr. Ayan Banerjee,
Ms. Atreyee De (Ganguly)
Hearing concluded on : 24.09.2019
Judgment on : 13.11.2019
Sabyasachi Bhattacharyya, J.:‐
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1.The defendant in a suit for eviction under Section 6 of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act") has preferred the instant application under Article 227 of the Constitution of India.
2. By virtue of the first portion of the impugned order dated August 6, 2019, the trial court disposed of an application filed by the petitioner under Section 7(2) of the 1997 Act on contest, inter alia, holding that there was no order regarding arrear of rent as the same was not asserted by the plaintiff and denied by the other. It was further held that as per an order of this court in C.O. No.1794 of 2019, the aspect of the status of the defendant in the suit will be decided on its own merits at the final hearing of the suit.
3. By the later portion of the same order, by which the defendant is in fact aggrieved, an application for amendment of the plaint, taken out by the plaintiff/opposite party no.1, was allowed.
4. Learned counsel for the defendant/petitioner submits that, by virtue of the said amendment, the plaintiff sought to make out a ground that the defendant/petitioner had become a trespasser by operation of Section 2(g) of the 1997 Act. It is argued that the plaintiff, in the original plaint, categorically 3 averred that the petitioner and other defendants are tenants in respect of the suit property, not by inheritance or as tenants‐in‐common, but original tenants.
5. Placing reliance on paragraph no.2 of the plaint, learned counsel for the petitioner argues that no tenancy‐in‐common was claimed but it was averred by the plaintiff that the defendants were monthly tenants in respect of the suit property. The plaint case started from the tenancy of the defendants, without tracing such tenancy back to any prior tenancy having devolved on them.
6. Moreover, the notice to quit was issued in 2013, but no ground of default in payment of rent was taken in the suit. Therefore, admittedly rent was accepted till 2013, although the predecessor‐in‐interest (father) of the defendants died as far back as in the year 1972.
7. That apart, the said admission in the plaint creates a reasonable inference that the plaintiff continued to accept rent from the defendants as tenants up to the year 2013, that is, much subsequent to the lapse of five years post‐commencement of the 1997 Act.
8. It is further submitted that the suit is based on a notice to quit under Section 6(4) of the 1997 Act, thereby admitting the defendants to be tenants under the 1997 Act.
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9. Paragraph no. 4 of the plaint, it is submitted, states that the notice under Section 6(4) of the 1997 Act furnished the cause of action for the suit and that Section 6(d) of the said Act was the ground of eviction of the defendants, as pleaded in the plaint.
10. As such, although the plaintiff/opposite party no.1 had the option of relying on Section 2(g) of the 1997 Act even at the inception of the suit, it was never taken as a ground for eviction by the plaintiff in the suit.
11. It is further submitted from the plaint, that the defendants were labelled as 'trespassers', not due to operation of Section 2(g) of the 1997 Act but since the defendants did not comply with the quit notice under Section 6(4) of the said Act.
12. It is argued on behalf of the petitioner that, although the defendants admitted in paragraph no.8 and paragraph no.13 of the written statement that late Madan Mohan Kundu, the original tenant (predecessor‐in‐interest of the defendants) died in the year 1972, it was also pleaded in paragraph no. 13 of the written statement that in 1972 the original landlord Anil Krishna Paul granted rent receipt in favour of the Samir Kumar Kundu, that is, only the defendant no.1/petitioner. It was further averred in the said paragraph of the written statement that the suit was bad for mis‐joinder of parties, thereby implying that, 5 on the death of the original tenant, Madan Mohan Kundu, a new tenancy was created in favour of the defendant no.1/petitioner. The defendants, as such, never claimed right to the suit property in the capacity of tenants‐in‐common, as heirs of the original tenant Madan Mohan Kundu, but an original tenancy of the defendant no.1/petitioner was claimed in the written statement as well.
13. As such, the pleadings of both the plaintiff as well as the defendants supported the stand that at least the petitioner was an original tenant and not a tenant‐in‐ common in respect of the suit premises.
14. It is further argued on behalf of the petitioner that, by virtue of the amendment, the nature and character of the suit would be changed.
15. Learned counsel for the petitioner cites a judgment reported at (2000) 1 SCC 712 [B.K. Narayana Pillai vs. Parameswaran Pillai and another] for the proposition that courts are more generous in granting amendments of written statements than those of plaints. The defendant, it was held therein, can take alternative pleas unless the other side was subjected to injustice and an admission was withdrawn. Inconsistent and contradictory allegations, in negation to admitted position of facts or mutually destructive allegation of facts, it was held, should not be allowed to be incorporated by amendment to pleadings. 6
16. Learned counsel for the contesting opposite party no.1, that is, the plaintiff in the court below, argues that there cannot be any estoppel against the statute, in the present case, Section 2(g) of the 1997 Act. Learned counsel cites a division bench judgment of this court reported at 2017(1) CLJ(Cal) 253 [Sri Utpal Roy & Anr. vs. Ratul Krishna Banerjee & Anr.] for the proposition that there cannot be any estoppel against the statute. Tenants‐in‐common, admitted by plaintiffs to be so, would be governed by Section 2(g) of the 1997 Act in the event the criteria of the said clause are satisfied. Even if initially the suit was filed against tenants‐in‐ common under Section 6 of the 1997 Act, admitting them as tenants, it is argued that a decree for eviction can be passed against them on the ground of being trespassers under Section 2 (g) of the said Act, since there could not be estoppel against the statute.
17. Learned counsel for the opposite party no. 1 next cites a judgment reported at 2019(2) CHN (Cal) 441 [Chhanda Mazumdar vs. Naba Kumar Mazumdar]. Therein, by amendment, the factum of death of the original tenant was sought to be introduced and Section 2(g) was applied since the defendants inherited their tenancy from the said erstwhile tenant.
18. Learned counsel for the opposite party no.1 then cites a judgment reported at (2009) 10 SCC 626 [Surender Kumar Sharma vs. Makhan Singh] for the proposition 7 that even if an amendment is allowed, thereby permitting new facts to come in, but the suit remains one for eviction, the nature and character of the suit is not changed.
19. Learned counsel next cites the judgment reported at (2002) 7 SCC 559 [Sampath Kumar vs. Ayyakannu and another] in support of the proposition that if the relief is sought to be changed on cause of action arisen during pendency of the suit, there could not be said to be a change in the nature and character of the suit.
20. Lastly, learned counsel for the opposite party no. 1 cites the judgment reported at (2015) 13 SCC 132 [Mahila Ramkali Devi and others vs. Nandram (Dead) Through Legal Representatives and others] to submit that courts take a liberal view in allowing amendments and amendments are generally allowed even if a mistake, negligence, inadvertence or even infraction of rules of procedure is sought to be corrected, unless there is mala fide or the amendment causes injury to the opponent, which cannot be compensated by costs. It was further held therein that rules of procedure are intended to be a handmaid to the administration of justice.
21. Thus, it is submitted, the nature and character of the suit would not be changed by the amendment but by operation of law, irrespective of the pleadings, Section 8 2(g) of the 1997 Act would in any event operate, thereby necessitating the amendment‐in‐question.
22. Upon hearing both sides, it is seen that, as rightly submitted by the defendant no.1/petitioner, the entire pleadings, as discussed above, of both sides, proceeded on the premise that the defendants were original tenants, as opposed to tenants‐ in‐common by inheritance. The plaint never averred, in its original form, that there was any devolution of tenancy on the defendants as tenants‐in‐common upon demise of the predecessor‐in‐interest of the defendants, that is, the original tenant. Moreover, the only instance when the defendants were described as trespassers in the plaint was on the premise that they did not comply with the quit notice under Section 6(4) of the 1997 Act. No mention of Section 2(g) was made in the plaint at all, despite such plea being available even at the inception of the suit. The suit itself was instituted in the year 2013 and the Act commenced long before such institution. The period of five years, after commencement of the statute of 1997, let alone from the demise of the erstwhile original tenant, elapsed much prior to the institution of the suit.
23. Even in the written statement, although the demise of the original tenant was stated to have occurred in the year 1972, it was specifically pleaded that thereafter the original landlord Anil Krishna Paul had granted rent receipt in 9 favour of only the petitioner, thereby creating an original tenancy in favour of the petitioner.
24. As far as alteration of the nature and character of the suit is concerned, the suit was originally filed under Section 6 of the 1997 Act, which is a special rent control statute. By the proposed amendment, the suit was sought to be changed into a suit for eviction of trespasser under the general law. Section 2(g) of the 1997 Act does not itself furnish a ground for eviction, unlike the sub‐clauses of Section 6 of the said Act, but merely alters the status of the occupants, rendering tenants to be trespassers upon the lapse of a particular period of time, being five years from the commencement of the Act or death of the tenant, as the case may be. Hence, the suit, upon the proposed amendment being effected would be converted from one under a special statute to one under the general law, thereby changing the basic structure of the lis. Such an amendment, thus, would not be a mere alteration of the ground of eviction but would have the effect of taking the suit outside the purview of the rent control statute, which is a special legislation, under which it was originally instituted, to a new suit for eviction of trespasser under the general law.
25. As far as the decision of the division bench of this court rendered in 2017(1) CLJ (Cal) 253 [Sri Utpal Roy & Anr. vs. Ratul Krishna Banerjee & Anr.], as well as the 10 judgment reported at 2019(2) CHN (Cal) 441 [Chhanda Mazumdar vs. Naba Kumar Mazumdar] are concerned, both deal with cases where there was a tenancy‐in‐ common created upon the death of the original tenant, as had been originally pleaded in the plaint, unlike the present case. In the present case, the consistent pleading of the plaintiff was that the defendants were original tenants. Moreover, it is evident from the plaint that rent was received till the year 2013, much after the lapse of five years from the commencement of the statute, which, without a ground of default in payment of rent having been taken, shows that the petitioner was accepted as a tenant in his own right by the plaintiff. The tenor of both the plaint and the written statement bolster the impression that the defendants, or at least the defendant no. 1/petitioner, were/was a tenant in their/his own right, and not tenant(s)‐in‐common upon devolution of tenancy by inheritance.
26. Moreover, the plaint categorically disclosed that the suit was filed under Section 6(d) of the 1997 Act and the frame of the suit was on the cause of action of the quit notice under Section 6(4) of the 1997 Act. As such, the entire premise of the original suit was that the defendants were original tenants and not tenants‐in‐ common, thereby leaving no scope of automatic operation of Section 2(g). 11
27. As such, the principle of there being no estoppel against statute does not operate in the present case, since the question as to whether the petitioner was the original tenant, as treated in the original plaint, or the defendants became tenants‐in‐common on the death of the erstwhile tenant (which was not even pleaded by either party), at best is a mixed question of law and fact and not a pure question of law, inviting the principle of "no estoppel against statute".
28. As regards the proposition, that if the suit remains one for eviction, the nature and character is not changed, the judgment reported at (2009) 10 SCC 626 [Surender Kumar Sharma vs. Makhan Singh] does not clearly say whether any ground akin to Section 2(g) was introduced in the said case by way of amendment. The 1997 Act provides only for the option of eviction under the said Act under Section 6 thereof. Section 2(g) renders previous tenants trespassers, but merely furnishes a ground for a suit under the general law for eviction of trespasser and as such, the nature and character of the suit would be entirely changed in the present case by the amendment proposed, even if the suit remains one for eviction. The laws governing such eviction suit pre‐ and post‐ amendment would be different, attracting distinct incidents and consequences.
29. That apart, the liberal view as regards amendments is qualified by the fact that in the present case, as also stipulated in the cited judgments, the amendment‐in‐ 12 question would entirely displace the defence case and amount to withdrawal of admission of tenancy of the petitioner. The entire scope and basis of the suit would be altered beyond recognition and the amendment would tantamount to being mala fide and causing injury to the defendants, which could not be compensated by costs.
30. The allegation of the defendants being trespassers by operation of Section 2(g) of the 1997 Act and that of the defendants being tenants under the same section of the 1997 Act, are mutually exclusive with each other and could not co‐exist in the plaint. The proposed amendment, thus, categorically withdraws an admission of the tenancy of the defendants, which would completely displace the defence case.
31. That apart, it must not be overlooked that an application under Section 7(2) was filed and the plaintiff submitted to the jurisdiction of the court, as if the suit was one for eviction under Section 6 of the 1997 Act, by filing a written objection to the said application, which was also adjudicated on contest by the first portion of the impugned order itself. Such participation of the plaintiff in the said proceeding amounted to submission to the jurisdiction of the court under the 1997 Act, which is a special statute and a Rent Control Act, as opposed to the general law for eviction.
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32. Under the circumstances as discussed above, the portion of the impugned order challenged in this revision, whereby the amendment application of the plaintiff was allowed, was palpably without jurisdiction and ought to be set aside.
33. Accordingly, C.O. No.3022 of 2019 is allowed, thereby setting aside the 'later' portion of the impugned order dated August 6, 2019, whereby the application of the plaintiff/opposite party no.1 for amendment of the plaint was allowed. If an amended plaint has already been filed by the plaintiff/opposite party no.1 pursuant to the impugned order, the same shall be expunged from the records and would not be looked into for the purpose of deciding the suit.
34. There will be no order as to costs.
35. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )