Jharkhand High Court
Shakuntala Misra vs Prema Singh on 8 September, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2691 of 2013
With
I.A. No. 6069 of 2021
1. Shakuntala Misra, age-79, w/o Late Kamlakar Prasad Mishra, r/o
House No. 29, Kharkai Enclave Sonari, P.O. & P.S.-Sonari, Dist.-East
Singhbhum (Jamshedpur).
2. Narendra Kumar Mishra, son of Late Ganga Sagar Mishra, resident of
Kokar, Old Hazaribag Road, P.O. P.S. Kokar, Dist. Ranchi.
... ... Plaintiffs/Petitioners
Versus
1. Prema Singh
2. Ambuz Kumar Gahlot
3. Amitesh Kumar Gahlot
Respondent No.1 widow and 2 and 3 are sons late Amar Nath Singh,
resident Kokar Old Hazaribag Road P.O. P.S.-Kokar Dist.-Ranchi.
...... Defendants/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Shresth Gautam, Advocate For the Respondents : Mr. Somit Kumar Chatterjee, Advocate
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23/Dated 08th September, 2022 I.A. No. 6069 of 2021:
1. The instant interlocutory application has been filed to bring to the notice of the Court about the death of respondent No.1, namely, Prema Singh.
2. It has been submitted that the respondent No.1, namely, Prema Singh has died on 18.06.2021 leaving behind the respondent nos.2 and 3 and two married daughters as her legal heirs and representatives, namely:
(a) Mr. Ambuj Kumar Gahlot
(b) Mr. Amitesh Gahlot both sons of Late (Captain) Amar Nath Singh
(c) Mrs. Namrata Singh wife of Shri Rahul Kumar Singh 2
(d) Mrs. Nidihi Singh, wife of Shri Rohit Singh
3. The instant application has been filed in pursuance of the provision provided under Order XXII Rule 10-A of the Code of Civil Procedure for taking appropriate action.
4. A reply to the said application has been filed on behalf of the petitioner stating inter alia therein that respondent No.1, Prema Singh, died in 18.06.2021 leaving behind the respondent nos. 2 and 3 and two married daughters as her legal heirs and representatives as claimed. In the instant application, it has been submitted by referring to the pleading made in the reply dated 10.08.2022 that in view of the definition of „tenant‟ as provided under Section 2(h) of the Act, 1982, married daughter will not come under the definition of „tenant‟.
5. It has been submitted that as per Section 2(h) of the Act, 1982, „tenant‟ has been defined which means any person by whom, or on whose account rent is payable for a building and includes spouse; son or unmarried daughter or where there are both, both of them; parents and; daughter-in-law, being the widow of a predeceased son.
6. It has further been submitted that Mr. Ambuj Kumar Gahlot and Mr. Amitesh Gahlot are respondent nos. 2 and 3 in the petition. So far as Mrs. Namrata Singh and Nidihi Singh are concerned, it has been stated at paragraph-8 that they are married daughters of the respondent no.1, as such, neither of them come under the definition of „tenant‟, as such, no substitution of parties is required in the instant writ petition.
7. This Court heard the learned counsel for the parties on the issue as to whether the substitution of married daughter are at all required warranting the petitioners to take steps for their substitution in the writ petition or not?
8. This Court, in order to answer the aforesaid issue, has considered the definition of „tenant‟ as provided under Section 2(h) of the Act, 1982, which reads as under:
""Tenant" means any person by whom, or on whose account rent is payable for a building and includes-3
(i) a person continuing in possession after the termination of the tenancy in his favour; and
(ii) a person who occupies a building as an employees of the landlord of such building either on payment of rent or otherwise;
(iii) in the event of death of the person continuing in possession after the termination of his tenancy subject to the order of succession and condition specified, respectively, in Explanations I and II to this clause, such of the aforesaid person‟s-
(a) spouse
(b) Son or unmarried daughter or where there are both, both of them
(c) Parents Daughter-in-law, being the widow of a predeceased son, as had been ordinarily residing in the premises with such person as a member of members of his family up to the date of his death, but does not include any person against whom an order or decree for eviction has been made.
9. It is, thus, evident that the „tenant‟ means any person by whom, or on whose account rent is payable for a building and includes-(i) a person continuing in possession after the termination of the tenancy in his favour; and (ii) a person who occupies a building as an employees of the landlord of such building either on payment of rent or otherwise; (iii) in the event of death of the person continuing in possession after the termination of his tenancy subject to the order of succession and condition specified, respectively, in Explanations I and II to this clause, such of the aforesaid person‟s-spouse; Son or unmarried daughter or where there are both, both of them; Parents. Daughter-in-law, being the widow of a predeceased son, as had been ordinarily residing in the premises with such person as a member of members of his family up to the date of his death, but does not include any person against whom an order or decree for eviction has been made.
10. Admittedly, herein, both the sons of respondent no.1, namely, Mr. Ambuj Kumar Gahlot and Mr. Amitesh Gahlot are party to the proceeding as respondent nos. 2 and 3. So far as the requirement of impleadment of the daughters of respondent no.1, namely, Mrs. Namrata Singh and Mrs. Nidihi Singh are concerned, this court is of the view that the admitted position is that both the daughters are married daughters as would appear from the pleadings made in the interlocutory application as under paragraph-2 wherein both the 4 daughters have been shown to be married since their details along with the names of their husband is mentioned.
11. This Court, after taking into consideration the admitted fact about the marital status of both the daughters as also taking into consideration the definition of „tenant‟ is of the view that both the daughters, namely, Mrs. Namrata Singh and Mrs. Nidihi Singh being married, are not coming under the fold of tenant.
12. Accordingly, this Court is of the view that since who are to be treated as tenant within the meaning of Section 2(h) of the Act, 1982 are already party to the proceeding as respondent nos.2 and 3 and both the daughters since are not coming under the fold of definition of „tenant‟, therefore, no substitution is required to be made so far as the impleadment of married daughters, namely, Mrs. Namrata Singh and Mrs. Nidihi Singh are concerned.
13. In view thereof, the instant interlocutory application stands disposed of.
W.P.(C) No. 2691 of 2013:
14. The instant writ petition has been filed under Article 227 of the Constitution of India, wherein order dated 08.02.2013 has been challenged by which the amendment of plaint filed under Order VI Rule 17 of the Code Civil Procedure (C.P.C.) has been rejected on the ground that the same is belated.
15. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated reads as under:
The petitioners filed an eviction suit bearing Eviction Title Suit No. 30 of 2003 for eviction of tenants in the premises of village Kokar P.S. Sadar, Dist.-Ranchi under Section 11(1)(c) read with Section 14 of the Bihar Building (Lease Rent and Control Eviction) Control Act, 1982 (hereinafter referred to as the Act, 1982). The defendants appeared and filed the written statement.
The petitioners/plaintiffs, during pendency of the suit, filed a petition under Section 15 of the Act, 1982 for payment of rent which was allowed vide order dated 12.04.2010 as would be evident from 5 Annexure-2 to the paperbook. The Respondent Nos. 2 and 3, the defendants to the suit, filed review against the order dated 12.04.2010 but the same was dismissed vide order dated 19.07.2010. The concerned defendants being aggrieved with the order dated 19.07.2010, filed a writ petition being W.P.(C) No. 2219 of 2010 which was dismissed. The order passed by the learned trial court under Section15 of the Act, 1982 has not been complied with and therefore, the defence of the concerned defendants have been struck off vide order dated 03.09.2012 appended as Annexure-3 to the petition.
The petitioners filed a petition under Order VI Rule 17 for amendment of the plaint seeking leave to add Section 11(1)(c) and Section 11(1)(d) in the cause title.
The petitioners have taken the plea that once the fact about fault in making payment had attained its finality and the defence has also been struck off vide order dated 03.09.2012, therefore, the leave sought for in addition of the prayer is fit to be allowed, otherwise it will lead to multiplicity of proceeding.
The learned trial court has dealt with the petition and passed an order on 08.02.2013, whereby and whereunder, aforesaid amendment petition has been rejected on the ground that the application which is required to be filed under Order 6 Rule 17 for amendment is only to be allowed after the commencement of the trial unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial, but the same has not been done. Apart from that, in the present suit, the issue which is to be adjudicated as to whether the present amendment as sought for by the plaintiffs is necessary to decide the real controversy between the parties or not.
The learned trial court has come to the conclusion that the real controversy between the parties is of landlord-tenant relationship. The plaintiffs claimed that the defendant nos. 2 and 3 are their tenant but the said two defendants claimed themselves as the hostile owner of the suit premises, as such, the real controversy between the parties is of landlord-tenant relationship and present amendment as sought for by the 6 plaintiffs will not help in any way to resolve the real controversy, accordingly, that has been taken to be a ground for rejection of the amendment petition.
The second ground upon which the petition filed under Order VI Rule 17 has been rejected is on the ground that the petitioners have failed to show that they in spite of due diligence could not have raised the matter before the commencement of the trial.
The third ground taken by the learned trial court is that the if the amendment sought for will be allowed, the nature of the suit will be changed since the eviction suit has been filed on the ground of bona fide personal requirement and if the amendment sought for will be allowed, it will change the character of the suit since the suit is guided by the provision under Section 14 of the Act, 1982 and the Defendants Nos. 2 and 3 are contesting the suit after obtaining leave from the court, as such, if the amendment petition will be allowed, the present suit should be converted as a general eviction suit. The aforesaid order has been challenged in this writ petition invoking the jurisdiction of the Court under Article 227 of the Constitution of India.
16.Mr. Shresth Gautam, learned counsel for the petitioners/plaintiffs has assailed the order that the ground taken by the learned trial court in rejecting the petition is not considered to be a fit ground since the learned trial court has failed to appreciate that even though the ground for default in making payment is available but the same has not been allowed, the consequence thereby would be that the same will lead to multiplicity of proceeding.
According to the learned counsel, in order to avoid multiplicity of proceeding, the provision has been made under CPC as under Order VI Rule 17 thereof so that the ground which is available during pendency of a suit may be allowed and the same be adjudicated but the having not been considered, the order impugned has been passed, therefore, the same is not sustainable in the eyes of law.
17. Mr. Somit Kumar Chatterjee, learned counsel for the defendants/respondents has defended the order passed by the learned 7 trial court on the ground that the petition filed under Order VI Rule 17 has rightly been rejected since the amendment sought for pertains to default in making payment of rent but the same is not the consequent development during pendency of the suit rather the same was available with the petitioners even at the time of filing of the suit which would be evident from the pleading of the petition itself wherein it has been pleaded that as on the date of filing of the suit, the respondents were at default in making payment of rent.
18. It has been contended that the petitioners even though knowing about the fact about default in making payment of rent has chosen to file the eviction suit on the ground of personal bona fide necessity as under the provision of Section 11(c) of the Act, 1982.
19. It has further been contended that once the ground of personal bona fide necessity has been taken, the suit will proceed in view of the provision contained under Section 14 of the Act, 1982. Therefore, once the forum has been chosen as under Section 14 of the Act, 1982 which is exclusively to deal with the cause of action as enumerated under Section 11(c) or (e) and if the other cause of action, i.e., the ground of default in making payment of rent is not permissible and taking the aforesaid legal position into consideration the learned trial court has also taken the same as a ground for rejecting the petition filed under Order VI Rule 17, therefore, the same cannot be said to suffer from error. Further, the petitioners have failed to show any due diligence.
20. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned trial court in the impugned order.
21. The fact which is not in dispute in this case as would appear from the pleading made in the petition as also from perusal of the plaint of the Eviction Title Suit No. 30 of 2003 is that the suit has been filed seeking ejectment under Section 11(1)(c) read with Section 14 of the Act, 1982.
It is the specific case of the petitioners as would appear from paragraph-6 of the plaint that the defendants have neither tendered, paid, sent or remitted the rentals for the month of July, 2003 to September, 8 2003 the period more than two months. For ready reference, the statement made therein as under paragraph-6 is being reproduced as under:
"6. That the defendants have neither tendered, paid, sent or remitted the rentals for the month of July, 2003 to September, 2003 the period more than two months."
22. It further discloses that the ground for rejection is the bona fide personal necessity. The respondents have appeared on being called upon by the learned trial court. The petitioners have filed an application under Section15 of the Act, 1982 on 14.09.2009 praying therein to direct the defendants to pay arrears of rent at the rate of Rs. 1100 per month w.e.f. July, 2003 and the present and future rentals at the same rate in the manner stipulated under Section 15 of the Act.
The defendant has filed rejoinder to the said application contesting the claim of the plaintiff wherein it has been pleaded that the instant application is liable to be dismissed on the ground that the earlier occasion, the same application was withdrawn. Further, the specific denial has been made with respect to the relationship of landlord-tenant.
The learned trial court has allowed the aforesaid application vide order dated 12.04.2010. It further appears from the record that the rent had not been paid in pursuance of the order dated 12.04.2010 by which the respondents were directed to deposit the arrears of rent within 15 days from the date of said order @ Rs. 1100 per month since July, 2003 as also directed to deposit the current month to month rent at the said rate by the 15th of the next following month.
The respondent, thereafter, filed an application on 26.04.2010 praying therein that the order dated 12.04.2010 may be recalled and reviewed.
23. The order passed on 19.07.2010, rejecting the review was challenged by the defendant nos. 2 and 3 before this Court by filing writ petition being W.P.(C) No. 2219 of 2010 which was dismissed but the order dated 12.04.2010 since has not been complied with, therefore, taking the requirement of the statute as provided under Section 15(3) of the Act 9 which provides that the defence of the defendant is required to be struck off if the order for making payment of rent is not being complied with.
24. The defendant nos. 2 and 3 filed rejoinder of the said petition and submitted that since the defendant have disputed the relationship of landlord-tenant and claimed the title over the suit property as such the order dated 12.04.2010 is illegal and improper.
25. The learned trial court after taking into consideration the order passed by this Court in W.P.(C) No. 2219 of 2010 by which the order passed on 12.04.2010 has been declined to be interfered with, therefore, the order was passed in the light of the provision as contained under Section 15(3) of the Act, 1982 strucking off the defence of the defendant no.1.
26. So far as the prayer of defendant nos. 2 and 3 is concerned, it has been observed by the learned trial court in the order dated 03.09.2012 as under Annexure-3 to the petition that in the suit for eviction if the defendant tenant fails to comply the direction for deposit of rent in compliance of the order passed under Section 15 of the Act, 1982, the defence of the defendant quo tenant is struck off, meaning thereby, the defendant-tenant cannot defend the suit for eviction as a tenant, but he can defend the action on the ground that he is not a tenant and can establish title in himself, if the tenant disputes the relationship of landlord and tenant and claims title in himself, he can adduce evidence to that effect. Accordingly, the defence of defendant nos. 2 and 3 has been struck off.
But, the said defendant can defend themselves and adduce evidence regarding title over the said property.
27. The order passed on 03.09.2012 as under Annexure-3, the petitioner at that juncture, filed a petition under Order VI Rule 17 read with Section 151 of the CPC for amendment of the plaint inter alia praying therein for seeking leave of the learned trial court to grant leave to the petitioner to amend the title page of the plaintiff in the second line after 11(1)(c), "11(1)(d)" be added as would appear from paragraph-6 of the amendment petition.
10Further, the amendment has been sought as stated under paragraph-7 of the plaint that in paragraph-6 at page-4 after two months the following be added:
"Even after the institution of this suit, the defendant did not deposit arrears, current and future rent from July, 2003 till today at the rate of Rs.1100/- (Rupees Eleven Hundred only) by honouring the orders of this court passed on 12.04.2010 and hence their defence has been struck off by terms of an order dated 03 Sep, 2012 by this court."
Further, in paragraph-8 in third line „sole‟ be deleted and substituted by „two‟ and in the fourth line after 11(1)c, "11(1)d" be added. In para-11 after plaintiff in 7th line the following be inserted:
"and defaulted in payment of rent since July 2003 and the plaintiffs required the suit premises for their bonafide use and occupation."
28. The aforesaid petition was responded by filing a reply as would appear from Annexure-5 appended to the petition wherein serious objection has been raised seeking amendment in the plaint. The learned trial court has considered the pleading of the plaint as also the objection made on behalf of the respondents and passed an order on 08.02.2013 by which the amendment sought for has been rejected inter alia on the ground:
(1) The real controversy between the parties is of landlord-tenant relationship. The plaintiffs claimed that the defendant nos. 2 and 3 are their tenant but the said two defendants claimed themselves as the hostile owner of the suit premises, as such, the real controversy between the parties is of landlord-tenant relationship and present amendment as sought for by the plaintiffs will not help in any way to resolve the real controversy, accordingly, that has been taken to be a ground for rejection of the amendment petition.
(2) The second ground upon which the petition filed under Order VI Rule 17 has been rejected is on the ground that the petitioners have failed to show that they in spite of due diligence could not have raised the matter before the commencement of the trial.
(3) The third ground taken by the learned trial court is that if the amendment sought for will be allowed, the nature of the suit will be changed since the eviction suit has been filed on the ground of bona fide personal requirement and if the amendment sought for will be allowed, it will change the character of the suit since the suit is 11 guided by the provision under Section 14 of the Act, 1982 and the Defendants Nos. 2 and 3 are contesting the suit after obtaining leave from the court, as such, if the amendment petition will be allowed, the present suit should be converted as a general eviction suit.
29. This Court, before scrutinizing the legality and propriety of the impugned order, deems it fit and proper to deal with the provisions of the Act, 1982.
30. Section 11 is required to be referred herein which contains the ground of seeking eviction of tenants, which reads as under:
"11. Eviction of tenants. -- (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:-
(a) for breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;
(b) where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of the tenant or of any person residing with the tenant or for whose behaviour the tenant is responsible;
(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord:
Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building within the meaning of clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5;
(d) where the amount of [two months] rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16;
(e) in case of a tenant holding on a lease for a specified period, on the expiry of the period of the tenancy; and
(f) the landlord requires the premises in order to carry out any building work at the instance of the Government or the Municipality or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the 12 building lies and such building work cannot be properly and fully carried out without the premises being vacated.
(2) (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building he shall give fifteen day's previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government or direct that the landlord shall be put in possession of the building:
Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building.
(b) Where a building is vacated by a servant of the Government any person occupying such building other than the person referred to in clause
(a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed:
Provided that after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person."
31. It is evident from the provision of Section 11which contains altogether six grounds, i.e., (a) for breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;(b) where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of the tenant or of any person residing with the tenant or for whose behaviour the tenant is responsible; (c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord: (d) where the amount of [two months] rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16;(e) in case of a tenant holding on a lease for a specified period, on the expiry of the period of the tenancy; and (f) the landlord requires the premises in order to carry out any building work at the instance of the Government or the Municipality or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the building lies and such 13 building work cannot be properly and fully carried out without the premises being vacated.
32. Further, reference of Section 14 is also required to be made herein, which reads as under:
"14. Special procedure for disposal of cases for eviction on ground of bonafide requirement. - (1) Every suit by a landlord for the recovery of possession of any premises on the ground specified in clause (c) or (e) of sub-section (1) of section 11 shall be dealt with in accordance with the procedure specified in this section.
(2) The Court shall issue summons in the prescribed form in every suit referred in sub-section (1) without delay.
(3) (i) The Court shall, in addition to, and simultaneously with the issue of summons for service on the tenant or tenants, also direct the summons to be served by registered post with acknowledgement due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require also direct the publication of the summons in the official gazette or in newspapers circulating in the locality, in which the tenant is last known to have resided or carried on business or personally worked for gain.
(ii) When an acknowledgement purporting to be signed by the tenant or his agent is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article, the court may declare that there has been a valid service of summons.
(4) The tenant on whom summons is duly served (whether by ordinary mail or by registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided;
and in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid.
(5) The Court shall give to the tenant leave to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in clauses (c) and (e) of sub-section (1) of Section 11.
(6) When leave is granted to the tenant to contest the suit, the latter may, within fifteen days from the date of the order, pray after filing the requisite Court fee, required for a written statement that the affidavit may be treated as the written statement or if he chooses to file a separate written statement he may do so within fifteen days of the grant of leave to contest the suit and if he does not file the written statement within the period he shall not be allowed to do so later. The Court shall thereafter commence the hearing of the suit as early as practicable.
(7) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) or any other law, the Court while hearing a suit under this section shall follow the practice and procedure of a Court of Small Causes including the recording of evidence.
14(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section:
Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
(9) Where no application has been made to the High Court in revision as laid down in sub-section (8) above, the Court, which passed the order for eviction may exercise the powers of review in accordance with the provision of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908):
Provided that no such review shall be made unless an application is filed for the same within ninety days of the date of order of eviction."
33. It is evident from the provision as contained under Section 14 of the Act, 1982 that every suit by a landlord for the recovery of possession of any premises on the ground specified in clause (c) or (e) of sub-section (1) of section 11 shall be dealt with in accordance with the procedure specified in this section.
Sub-section (8) thereof provides that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section. Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
Sub-Section (9) thereof provides that where no application has been made to the High Court in revision as laid down in sub-section (8) above, the Court, which passed the order for eviction may exercise the powers of review in accordance with the provision of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908. Provided that no such review shall be made unless an application is filed for the same within ninety days of the date of order of eviction.
34. It is, thus, evident that Section 14 is a provision which has specially been carved out to look into the eviction issues if filed on the ground of bona fide necessity or the period of lease having been expired.
35. So far as the other provisions which are under Section 11(1)(a),(b),(d),(f) are concerned, the same is to be dealt with by the 15 general provision of CPC, i.e., against the order passed on that ground the first appeal/second appeal will lie, as per the provision of the Code of Civil Procedure.
36. Section 15 is also required to be referred herein, which stipulates a provision of deposit of rent by tenants in suits for ejectment. The same reads as under:
"15. Deposit of rent by tenants in suits for ejectment. - (1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before [or]after the institution of the suit, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month; the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross- examine the landlord's witnesses.
(2) If in any proceeding referred to in sub-section(1) there is any dispute as to the person or persons to whom the rent is payable the Court may direct the tenant to deposit in Court the amount payable by him under sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.
(3) If the Court is satisfied that any dispute referred to in sub-section (2) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section(l)."
37. It is evident from the aforesaid provision that if, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before [or] after the institution of the suit, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month; the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not 16 defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord's witnesses.
38. Here, in the given facts of the case, it is admitted position that at the time of filing of suit which was filed on 12.03.2003 as would appear from the affidavit/verification part of the plaint and on the day of filing of the eviction suit as has been pleaded in the plaint that the rent was not being paid from the month of July, 2003 and continued to be not being paid even during pendency of the suit which led the petitioners to file an application under Section 15 of the Act, 1982 seeking a direction to make payment of arrears as also current and future rent. The said prayer of the petitioners was allowed as would appear from order dated 12.04.2010 and the defence of the respondents was struck off. The order of strucking off defence attained its finality since the High court while passing the order in W.P.(C) No. 2219 of 2010 has refused to interfere with the same.
39. The first ground pertains as to whether the present amendment as sought by the plaintiffs is necessary to resolve the real controversy between the parties or not?
The learned trial court has opined that the real controversy between the parties of the suit is landlord and tenant relationship, as such, the present amendment as sought by the plaintiffs will not help in any way to resolve the real controversy. It has further been opined that the present amendments are required to prove the ground for eviction. It is no way needed to determine the landlord-tenant relationship.
40. This Court is not in agreement with such opinion which has been taken as a ground to reject the amendment, reason being that if in eviction suit, the landlord-tenant relationship has been raised which is required to be adjudicated along with other issues as has been held by the Full Bench of the Patna High Court in Ladu Gopal Kedia vs. Bibi Jaibunissa (1991) 2 PLJR 1 wherein at paragraphs-68 and 69 it has been observed that in a suit for eviction, the defendants may raise a question which if decided in his favour, the entire suit may have to be dismissed, e.g., denial of relationship of landlord and tenant; absence of the plaintiff‟s title in the suit property, maintainability of the suit etc. 17 In a suit for eviction, therefore, if all the issues are taken up for hearing together, the court may conveniently dispose of all the issues including the issues which go to the root of the matter. On the other hand, if the issue of personal necessity is taken up as a preliminary issue, it will have to decide other issues together with it, e.g. the issue with regard to the denial of relationship of landlord and tenant which would be a common issue both in respect of the ground for eviction on the ground of personal necessity and/or any other ground specified in sub-section (1) of Section 11 of the Act, e.g. the ground of default or sub-letting. In such a situation, it will, therefore, be convenient to hear all the issues together when the suit for eviction is based upon, the ground of personal necessity as also on the ground of default. The said paragraphs of the said judgment reads as under:
"68. In a suit for eviction, the defendant may raise a question which if decided in his favour, the entire suit may have to be dismissed, e.g., denial of relationship of landlord and tenant; absence of the plaintiff's title in the suit property, maintainability of the suit etc.
69. In a suit for eviction, therefore, if all the issues are taken up for hearing together, the court may conveniently dispose of all the issues including the issues which go to the root of the matter. On the other hand, if the issue of personal necessity is taken up as a preliminary issue, it will have to decide other issues together with it, e.g. the issue with regard to the denial of relationship of landlord and tenant which would be a common issue both in respect of the ground for eviction on the ground of personal necessity and/or any other ground specified in sub-section (1) of Section 11 of the Act, e.g. the ground of default or sub-letting. In such a situation, it will, therefore, be convenient to hear all the issues together when the suit for eviction is based upon, the ground of personal necessity as also on the ground of default. In my view, piecemeal decisions in such a suit will, in fact, be inconvenient."
It is thus, evident that the learned trial court has failed to appreciate the fact that even if the suit has been filed for deciding the bona fide personal necessity and the issue is to decide the landlord- tenant relationship, even in that case, the other issues are required to be adjudicated along with the issue, i.e., adjudication about the landlord- tenant relationship, therefore, the aforesaid reasoning of rejection of the plaint is not worth to be considered, accordingly, the same is rejected.
41. So far as the second ground is concerned, wherein the petitioners have not shown due diligence as per the requirement to allow the amendment petition under Order VI Rule 17 of the CPC. The petitioners have tried to explain it by taking the aid of the order passed by the learned trial 18 court itself wherein direction has been passed to make payment of rent, arrears of rent as also the current and future rent, therefore, it has been contended that if the fact is not in dispute, there cannot be any reason of rejection of plaint on the ground of not showing the due diligence.
42. This Court, on such reasoning of the learned counsel for the petitioners that in such circumstances due diligence is not required, is not in agreement with the same as per the provision made under Order VI Rule 17 of the CPC that if the amendment is sought for, it is incumbent upon the concerned party who are seeking amendment in the plaint or the written statement to show due diligence to the court as to what prevented the party concerned in not taking such plea at the time of filing of the plaint.
43. The law is well settled so far as the consideration of the petition filed under Order VI Rule 17 of the CPC as to in which circumstances, the amendment is to be allowed. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in J.J. Lal Pvt. Ltd. and Ors. vs. M.R. Murali and Anr., (2002) 3 SCC 98, paragraphs-12 and 13 of the said judgment reads 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 19 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."
(emphasis supplied)
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. 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."
The Hon'ble Apex Court in Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., (2008) 14 SCC 364 has laid down the conditions of the amendment as under paragraph-18 which reads 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 20 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."
The same view has been reiterated in the judgment rendered by the Hon'ble Apex Court 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."
Thus, it is evident that the Hon'ble Apex Court has laid down the conditions of amendment: (i) when the nature of the suit is not changed; (ii) when the amendment would 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.
But, it is equally settled that the judgment is to be tested on the facts of the given case since there is no universal application of a judgment as has been by the Hon'ble Apex Court in Dr. Subramanian Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC 75, paragraph 47 of which reads hereunder as:
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is 21 only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.""
44. Therefore, considering the principle to allow the petition filed under Order VI Rule 17 is now proceeding to examine the applicability of the principle regarding showing due diligence in the given facts of the case as provided under the proviso to the amended provision of the CPC as contained under Order VI Rule 17 thereof.
Herein, the fact is not in dispute that on the date of filing of the suit, the respondents were default in making payment of rent for the months of July and August, 2003, as such, the ground has been taken for rejecting the petition filed under Order VI Rule 17 of the CPC, impugned herein, that the petitioners before the learned trial court have failed to show due diligence since even though the default in making payment of rent was available at the time of filing of the suit but it is equally admitted fact herein that even after filing of the suit, the respondents have failed to make payment of the current rent, as such, in this circumstances, the test would be as to whether default in making payment of rent in case of pendency of the suit will be considered to be continuing wrong and if raised, will not be the subsequent event and as such, it is required in that circumstances to show due diligence in case where the respondents have failed to make payment of rent in course of pendency of the suit, in continuation of the default, which were there at the time of filing of the suit.
This Court, in order to answer this, deems it fit and proper to refer the judgment in Union of India vs. Tarsem Singh, (2008) 8 SCC 648 wherein it has been observed that a continuing wrong is a single wrong causing a continuing injury. In case of a continuing wrong, the grievance essentially is about an act which creates a continuous source of injury and renders the doer of that act responsible and liable for continuance of that injury. The injury is not complete when the act is committed; it continues even thereafter; and so long as it does, the cause of action itself continues. A recurring or successive wrong, on the other hand, occurs when successive acts, each giving rise to a distinct and separate cause of action, are committed. Each act, in itself wrongful, 22 constitutes a separate cause of action for sustaining a claim or a complaint. For ready reference, the relevant paragraph is being reproduced as under:
"4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A "continuing wrong"
refers to a single wrongful act which causes a continuing injury.
"Recurring/successive wrongs" are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798] explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963): (AIR p. 807, para 31) "31. ... It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.""
45. The Hon‟ble Apex Court has laid down that in a case of continuing wrong the grievance essentially is about an act which creates a continuous source of injury and renders the doer of that act responsible and liable for continuance of that injury. The injury is not complete when the act is committed; it continues even thereafter; and so long as it does, the cause of action itself continues. A recurring or successive wrong, on the other hand, occurs when successive acts, each giving rise to a distinct and separate cause of action, are committed. Each act, in itself wrongful, constitutes a separate cause of action for sustaining a claim or a complaint.
46. The question arises therefore, that merely because the arrears of rent for the two months has not been paid can the plaintiffs be precluded from bringing the subsequent cause of action which has arisen due to not making payment in course of pendency of the suit. The cause of action means bundle of facts as has been held by the Hon‟ble Apex Court in Inbasagaran and Anr. vs. S. Natarajan (Dead) Through Legal Representatives, (2015) 11 SCC 12, therefore, cause of action having been a bundle of facts even though the prayer for default in making payment for the two months has not been made which does not 23 disentitle the petitioners to make addition in the prayer for insertion of a ground on default in making payment of rent that too that fact has been admitted after the order having been passed by the learned trial court for making payment of rent and it has attained finality as has been discussed hereinabove. For ready reference, pararagraph-20 of the said judgment is being reproduced as under:
"20. Indisputably, cause of action consists of a bundle of facts which will be necessary for the plaintiff to prove in order to get a relief from the court. However, because the causes of action for the two suits are different and distinct and the evidence to support the relief in the two suits is also different then the provisions of Order 2 Rule 2 CPC will not apply. The provision has been well discussed by the Privy Council in Mohd. Khalil Khan v. Mahbub Ali Mian [Mohd. Khalil Khan v. Mahbub Ali Mian, (1947-48) 75 IA 121 : (1948) 61 LW 686 : AIR 1949 PC 78] , which held as under : (IA pp. 143-44) "The principles laid down in the cases thus far discussed may be thus summarised:
(1) The correct test in cases falling under Order 2 Rule 2, is „whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit‟.
(Moonshee Buzloor Ruheem v. Shumsoonnissa Begum.
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Read v. Brown).
(3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey).
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.(Brunsden v. Humphrey) (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers „to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour‟. (Chand Kour v. Partab Singh [Chand Kour v. Partab Singh, (1887-88) 15 IA 156 : ILR (1889) 16 Cal 98] ) This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2 Rule 2), where the plaintiff made various claims in the same suit."
Here, in the given facts of the case, the non-payment of the rent even in course of pendency of the suit will come under the fold of recurring or successive wrong since the non-payment of rent has occurred due to successive act of the respondents/defendants and as such, it will give rise to a distinct and separate cause of action, as such, on this ground, the finding recorded by the learned trial court that the cause of action for non-payment was known to the petitioners at the time of filing of the suit, as such, the amendment petition has been 24 dismissed, but while recording such finding, the learned trial court has failed to appreciate the meaning of recurring or successive wrong. In that view of the mater, the order passed by the learned trial court suffers from illegality.
47. So far as the issue of causing prejudice to the respondent is concerned, it requires to refer herein that the issue of non-payment of current rent is not in dispute since herein the petition has been filed under Section 15 of the Act, 1982 which was allowed as also the same has attained its finality, therefore, the position of law is settled that when the issue is in admission, there is no question of causing any prejudice since prejudice is said to have caused if the issue is in dispute and the concerned party will not get an opportunity to rebut the same, but, herein, there is no question of rebuttal since the fact about non-payment of current rent is admitted since the defendants have not paid the said current rent even after passing of the order by the learned trial court which has attained its finality since review/recall of the said order has been rejected and subsequently the writ petition has also been dismissed.. Hence, the ground of causing prejudice in the facts of the given case is also not available.
48. The third ground has been taken that if the amendment will be allowed, the nature of the suit will be changed since the ground for ejectment is bona fide personal necessity as provided under Section 11(1)(c) of the Act, 1982.
49. There is no dispute after going through the provision of Section 11 and 14 of the Act, 1982 that a suit based on the grounds of clauses (c) and
(e) of Section 11 of the Act, 1982 should be tried upon following special procedure laid down under Section 14 of the Act and a separate ordinary trial with respect to other cause of action will follow. It is further evident from the provision of Section 14 of the Act, 1982 that the special procedure laid down therein can be taken recourse to from the time the suit is instituted. However, position of law is well settled that the rules or procedure are meant to be observed and once a suit is instituted and grounds other than specified in clause (c) and (e) of Section 11(1) of the Act, 1982 ordinary procedure laid down in the 25 Code of Civil Procedure would had to be followed. Once the order for determining the suit for eviction are directed to be followed by the court, it must be held that by necessary implication court refused to follow the said procedure as laid down under Section 14 of the Act.
50. The application for seeking leave to contest the suit has been filed in terms of the procedure laid down therein. The default of the appearance in pursuance to the summons by the statement made by the landlord in the suit for eviction shall be entitled to an order for eviction on the ground aforesaid.
51. The provisions as contained under Section 14 of the Act are more stringent as such the same can be taken recourse only to the condition precedent and fulfilled and not otherwise. Further, the recourse under Section 14 has been taken the right of tenant to prefer an appeal for decree will also go as would appear from Section 14(8) of the Act, 1982.
52. The issue has been crept up as to what would be the procedure to be followed if other than the cause of action referred in Section 11 and also after filing of the suit, the ground on which the procedure to carry out the suit.
53. The Full Bench of this Court in Ladu Gopal Kedia vs. Bibi Jaibunissa (supra) has dealt with the said issue and as would appear from paragraph-64 that once a suit is instituted, the ordinary procedure of the Code of Civil Procedure are to be followed. If the suit is for settlement on the ground other than referred in clause (c); summons should be send to the defendant for settlement of the issues and the defendant in such a situation would have a right to file written statement once special provision is followed and summons are issued and the defendant upon appearing in the suit files a written statement whereafter issues are settled, the question of taking recourse to a special procedure under Section 14 of the said Act would not arise only because at a later stage, the plaintiff wishes that the suit may be decided on the preliminary issue of his personal necessity.
26It has further been observed at paragraph-65 thereof that under Section 14 of the Act has been enacted for the benefit of the landlord only in respect of grounds as mentioned in clause (c) and (e) of sub- section (1) of Section 11 of the Act. He is entitled to avail this benefit only in the event he confines the claim to the permissible grounds. However, if he adds grounds other than those specified, he foregoes the privilege of the summary proceeding.
It further appears from paragraph-68 wherein it has been observed that in a suit for eviction, the defendant may raise a question which if decided in his favour, the entire suit may have to be dismissed, e.g., denial of relationship of landlord and tenant; absence of the plaintiff‟s title in the suit property, maintainability of the suit etc. In a suit for eviction, therefore, if all the issues are taken up for hearing together, the court may conveniently dispose of all the issues including the issues which go to the root of the matter. On the other hand, if the issue of personal necessity is taken up as a preliminary issue, it will have to decide other issues together with it, e.g. the issue with regard to the denial of relationship of landlord and tenant which would be a common issue both in respect of the ground for eviction on the ground of personal necessity and/or any other ground specified in sub-section (1) of Section 11 of the Act, e.g. the ground of default or sub-letting. In such a situation, it will, therefore, be convenient to hear all the issues together when the suit for eviction is based upon, the ground of personal necessity as also on the ground of default. The aforesaid paragraphs reads as under:
"64. The same in my opinion is impermissible in law. Once a suit is instituted, the ordinary procedures of the Code of Civil Procedure are to be followed; summons should be sent to the defendant for settlement of the issues and the defendant in such a situation would have a right to file written statement. Once such a procedure is followed and summons are issued and the defendant upon appearing in the suit files a written statement whereafter issues are settled, the question of taking recource to special procedures laid down under Section 14 of the said Act would not arise only because at a later stage the plaintiff wishes that the suit may be decided on a preliminary issue of his personal necessity.
65. Section 14 of the Act has been enacted for the benefit of the landlord only in respect of grounds as mentioned in clause „c‟ and „e‟ of sub- section (1) of Section 11 of the Act. He is entitled to avail this benefit only in the event he confines the claim to the permissible grounds. However, if he adds grounds other than those specified, he foregoes the privilege of the summary proceeding.27
68. In a suit for eviction, the defendant may raise a question which if decided in his favour, the entire suit may have to be dismissed, e.g., denial of relationship of landlord and tenant; absence of the plaintiff's title in the suit property, maintainability of the suit etc.
69. In a suit for eviction, therefore, if all the issues are taken up for hearing together, the court may conveniently dispose of all the issues including the issues which go to the root of the matter. On the other hand, if the issue of personal necessity is taken up as a preliminary issue, it will have to decide other issues together with it, e.g. the issue with regard to the denial of relationship of landlord and tenant which would be a common issue both in respect of the ground for eviction on the ground of personal necessity and/or any other ground specified in sub-section (1) of Section 11 of the Act, e.g. the ground of default or sub-letting. In such a situation, it will, therefore, be convenient to hear all the issues together when the suit for eviction is based upon, the ground of personal necessity as also on the ground of default. In my view, piecemeal decisions in such a suit will, in fact, be inconvenient."
54. Reference of another judgment may be made rendered by the Patna High Court in Reyazul Haque vs. Mosst. Maimun Khatoon and Anr., 1985 PLJR 490, wherein the same view has been taken.
55. It is, thus, evident from going through the judgments as referred above that in a case where a suit for ejectment has been filed other than under the ground of clause (c) and (e) and if subsequently the ground is added of personal necessity, the same will be decided not under the special provision as provided under Section 14 rather the same will be decided by the ordinary procedure of the Code of Civil Procedure.
56. Taking the aforesaid fact into consideration and applying it in the facts of the given case, where although the suit originally has been filed on the ground of bona fide personal necessity, i.e., under Section 11(1)(c), as such, a special procedure laid down under Section 14 has been followed, But, if the amendment will be allowed showing the other cause available under Section 11(1) other than clause (c) and (e), in that circumstances, the legal course would be to go to the ordinary procedure of Code of Civil Procedure and not under the special procedure as laid down under Section 14 of the Hon'ble Apex Court.
57. This Court, on the basis of the aforesaid fact, is of the view that merely because the procedure as has been initiated under Section 14 of the Act, 1982 on the basis of the facts of the given case has been commenced, therefore, if amendment will be allowed even though the subsequent cause for default in making payment of rent is found to be there, it 28 cannot be said that the nature and character of the suit will change rather only the procedure of the commencement of the trial will change, thereby, the complexion of the suit cannot be changed.
58. This Court is conscious of the jurisdiction available to this Court under Article 227 of the Constitution of India wherein the High Court can set aside or reverse the 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. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, (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.
59. This Court, therefore, is of the view that the order passed by the learned trial court suffers from error on the basis of the discussion made hereinabove.
60. Accordingly, the instant writ petition deserves to be allowed. In consequence thereof, the order dated 08.02.2013 is quashed and set aside.
61. The matter is remitted before the learned trial court to pass a fresh order on the basis of the observations made hereinabove.
62. Needless to say that after passing the fresh order on amendment, the learned trial court is required to proceed under the ordinary process of the Code of Civil Procedure.
63. This Court, before parting with the order and exercising the power of superintendence as conferred under Article 227 of the Constitution of India, deems it fit and proper to direct the learned trial court to expedite the suit since the suit is of the year 2003 and since then 19 years have gone. Therefore, the learned trial court is directed to conclude the trial at an early date preferably within a period of six months from the date of receipt of copy of the order.
2964. Accordingly, the instant writ petition stands disposed of with the observations and directions as above.
(Sujit Narayan Prasad, J.) Saurabh N.A.F.R.