Gauhati High Court
Mustt. Manjula Begum & 3 Ors vs Ramesh Kumar Virmani on 24 October, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P. (I/O) NO. 100 OF 2017
Mustt. Manjula Begum & 3 others ... Petitioners
-Versus-
Ramesh Kumar Virmani ... Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner : Mr. D. Baruah, Ms. B. Das, Ms. N. Upadhyay, Advocates.
For the respondent : Mr. R.J. Bordoloi, Mr. R. Ali, Ms. A Saikia, Ms. M. Sharma, Advocates.
Date of hearing : 05.09.2017
Date of judgment : 24.10.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. Devashis Baruah, the learned counsel for the petitioners as well as Mr. Rup Jyoti Bordoloi, the learned counsel appearing for the respondent.
2) By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 28.03.2017 passed by the learned court of Munsiff No.1, Kamrup (M), Guwahati in T.S. No.225/2013, by which the petition No.856/2016 filed under Order VI Rule 17 CPC for amendment of the plaint was partly rejected.
CRP(I/O) No.100/2017 Page 1 of 103) Owing to the nature of prayer made herein, the pleadings of the parties is not required to be gone into. As per the statements made in the application for amendment of the plaint, on 08.04.2003, the predecessor- in- interest of the petitioners had instituted a suit for ejectment of the respondent from the suit premises on the ground of defaulter and on the ground that the suit premises was bona fide required. The suit was numbered as T.S. No.102/2003 and was tried by the Court of the learned Civil Judge No.1, Kamrup, Guwahati. The respondent- defendant contested the suit by filing written statement. On 29.10.2004, the predecessor-in-interest of the petitioner died and the present petitioners were substituted in his place as substituted plaintiffs. The petitioner- Plaintiff No.4 had further bona fide requirement the suit premises as he wanted to start his own business. At the stage of cross-examination of PW-1, the learned trial court granted leave to the petitioners-plaintiffs to produce documents. Challenging the said order, the respondent moved this Court by filing CRP 355/2006 under Article 227 of the Constitution of India, wherein, this Court had stayed the proceeding of the TS 102/2003. The said revision was dismissed by order dated 03.12.2012 with a direction to the parties to appear before the trial court on 01.02.2013. On the said date fixed, the parties appeared before the learned trial court. However, due to enlargement of pecuniary jurisdiction, the suit was transferred to the Court of the learned Munsiff No.4, Kamrup (M), Guwahati, where it was re-numbered as T.S. 225/2013 and the case was fixed for further cross examination of PW-1 on 24.06.2013.
4) In the application for amendment of the plaint, it is alleged that during the pendency of the suit, the respondent did not tender any rent to the petitioners (i.e. substituted plaintiffs). Therefore, in view of the case of Sobha Biswas and other Vs. Ranjit Lodh, 2006 (1) CRP(I/O) No.100/2017 Page 2 of 10 GLT 479, the petitioners filed an application under Section 151 CPC to bring to the notice of the court that rent was not paid by the defendant during the pendency of the suit. The said application was numbered as Misc. (J) Case No. 107/2013, which was rejected by order dated 09.10.2013. Thereafter, another application under Section 151 CPC was filed for recall of the order dated 09.10.2013, which was numbered as Misc. (J) Case No.177/2013 and the said application was also rejected by order dated 18.09.2014. Challenging the said orders, the petitioners filed an application under Article 227 of the Constitution of India before this Court, which was registered as CRP (I/O) 85/2014. This Court by order dated 23.02.2016, disposed of the said revision with a direction to the petitioners to file an appropriate application under Order VI Rule 17 CPC to bring on record the default of payment of rent during the pendency of the suit. Accordingly, the petitioners filed an application for amendment of the plaint. The respondent had filed his written objection. The learned trial court by the impugned order dated 28.03.2017, rejected the said application.
5) The learned trial court had held that if the defendant was not paying rent after filing of the suit, the plaintiffs had remained silent for about 13 years to raise this issue and thus, it was held that the petitioners had fail to explain due diligence on their part. It was also held that as issues had been framed, there was no necessity of further raising any issue or bringing some cause of action on the basis of some other facts at this stage of the suit because the defendant had already set up his defense regarding the allegation of default in payment of rent and new facts at that stage would seriously prejudiced and, as such, the proposed amendment by way of paragraph -7(A) was disallowed.
CRP(I/O) No.100/2017 Page 3 of 106) As regards the proposed amendment by way of paragraph - 7(B), the same was rejected on the ground that it was not explained that what prevented the plaintiffs from raising the issue of enhancement of rent at an earlier stage. It was held that the proposed amendment was not necessary for determining the real question of controversy between the parties and brining in new facts would rise to new cause of action which would cause injustice to the other side. On the proposed amended by way of paragraph -7(C), it was held that the claim of arrear rent from the filing of the suit cannot be allowed as it would amount to setting up a fresh claim in respect of a cause of action which since the institution of suit had become barred by limitation and it was held there was absence of due diligence on the part of the petitioners in raising that claim and allowing of amendment would cause serious injury to the other side. As regards additional issue of bona fide requirement of the suit premises by the plaintiffs No. 3 and 4, the amendment as proposed by paragraph 8(A) was allowed with a cost of Rs.1,000/-.
7) The learned counsel for the petitioners submit that in the application for amendment, the petitioners had clearly stated that the judgment in the case of Sobha Biswas (supra) was pronounced on 14.02.2006, but the proceedings of T.S. 102/2003 was stayed by this Court in the year 2006 by virtue of orders passed in CRP No.355/2006. The order of stay of the suit was vacated by order dated 03.12.2012. Thereafter, the suit was transferred for trial to the learned Court of Munsiff No.4, Guwahati, and upon such transfer, the petitioners had immediately filed Misc. (J) Case No.107/2014 which was rejected by the learned trial court. The prayer for recall of the order was also rejected and thereafter, this Court by order dated 23.02.2016 passed in CRP (I/O) 85/2014, directed the petitioners to file an appropriate CRP(I/O) No.100/2017 Page 4 of 10 application under Order VI Rule 17 CPC. This Court had fixed the date of appearance before the learned trial court on 04.03.2015 and on the said date, the petitioners had filed their application for amendment of the plaint. Thus, there was no lack of due diligence on the part of the petitioners and, as such, the learned trial court had erred in law as well as on facts and that the impugned order was passed without considering the order dated 23.02.2016 passed by this Court in CRP (I/O) 85/2014. In support of his argument, the learned counsel for the petitioners has relied on the following cases:-
a. Nidhi Vs. Ram Kripal Sharma (dead) through LRs,(2017)5 SCC 640;
b. Chakreshwari Construction (P) Ltd. Vs. Monohar Lal , (2017) 5 SCC 212;
c. Mahila Ram Kali Devi and others Vs. Nandaram (dead) through L.Rs. and others , (2015) 13 SCC 132;
d. Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others, (2009) 10 SCC 84;
e. Sobha Biswas and others Vs. Ranjit Lodh, 2006 (1) GLT 479; f. Rajesh Kumar Aggarwal and others Vs. K. K. Modi and others, (2006) 4 SCC 385.
8) Per contra, the learned counsel for the respondent has submitted that this application should not be entertained as the written statement of the respondent was not annexed, which could have shown the defence taken by the respondent in his written statement. It is submitted that if the amendment of the plaint was allowed, it would dislodge the defendant's defence. It is also submitted that not only issues were framed in the suit but the case was fixed for further cross- examination of PW-1 and, as such, unless the petitioners are able to satisfy the trial court about the existence of due diligence on the part of the petitioners- plaintiffs, the proposed amendments cannot be allowed in view of proviso to Order VI Rule 17 CPC. It is further submitted that the predecessor- in- interest of the petitioners had died CRP(I/O) No.100/2017 Page 5 of 10 on 29.01.2004, and CRP 355/2006 was filed only in the year 2006, and therefore, there was no explanation as to why the prayer for amendment was belatedly filed in the year 2016. It is further submitted that the evidence on affidavit by PW.1 (petitioner No.3) on 14.09.2004 and the said witness was partly cross- examined on 08.12.2004, as such, the petition for amendment of the plaint was filed at a very belated stage. It is also submitted that the prayer for amendment, if allowed, would change the nature and character of the suit and the petitioner cannot be permitted to raise new cause of action at such a belated stage. It is further submitted that there is a procedure prescribed for enhancement of rent and therefore, if a fresh rent is determined, there would a fresh cause of action for the suit, and therefore, rent cannot be enhanced by giving it a retrospective effect during the pendency of the suit and if it is rent is re-determined, it can only be given prospective effect. The learned counsel for the respondent has also submitted that the burden of proof would always be on the tenant to prove that the tenant had tendered rent to the landlord before depositing rent in court, for which the plaint was not required to be amended and the petitioners would not suffer any prejudice on dismissal of the petition for amendment of the plaint.
9) In support of his argument, the learned counsel for the respondent has placed reliance on the following cases:-
a. Anil Chandra Nath Vs. Md. Aliul Islam and others, (2009) 2 GLR 207;
b. Jay Govind Yadav (Goala) Vs. Ahmed Tea Co. (P) Ltd., (2008) 5 GLR 514;
c. Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others, (2009) 10 SCC 84;
d. State Bank of Hyderabad Vs. Town Municipal Council, (2007) 1 SCC 765.
CRP(I/O) No.100/2017 Page 6 of 1010) Considered the arguments advanced by the learned Counsels for both sides as well as the cases cited by them.
11) It is seen that this Court by order dated 23.02.2016 passed by this Court in CRP (I/O) 85/2014, allowed the petitioners herein to file an application for amendment to bring the subsequent default on part of the respondent to tender/ pay monthly rent to the petitioners. The said order had attained finality. Therefore, the foundation for filing the application for amendment was laid by this Court by the said order.
12) Nonetheless, the petitioner is found to have explained the reason for delay in filing the application for amendment. It is duly explained that the proceeding of the T.S. No.102/2003 was stayed by this Court and on the stay being vacated, on the date fixed for appearance, the application under Section 151 CPC was filed to bring on record the allegation of default on part of the respondent to tender/ pay monthly rent to the petitioners. The rejection of the said petition and filing of review is also stated, which eventually was challenged by filing CRP (I/O) 85/2014, order dated 23.02.2016 passed by this Court.
13) The specific case of the petitioners is that the petition for amendment was necessitated in view of law laid down in the case of Sobha Biswas (supra). In the said case, by referring to the case of Abdul Matin Choudhury Vs. Nityananda Dutta Banik, 1997 (2) GLT 590, the Division Bench of this Court had approved of the same and, inter- alia, held -
"16. ... We hold that a land lord can bring on record by proper method the subsequent event or facts such as default in payment of rent by the tenant during the pendency of the eviction of proceeding against him and on making such a prayer the tenant would be entitled to object to the same, if so desire. If the learned Court finds that the tenant has CRP(I/O) No.100/2017 Page 7 of 10 defaulted in payment of such rent during the pendency of the ejectment proceeding, the Court would be within its jurisdiction to pass an order of ejectment treating the tenant as a defaulter and pass appropriate orders thereon in the same suit. The land lord cannot be subjected to file successive suits for ejectment on the occasion of every default of the tenant, committed during the pendency of the eviction proceeding."
14) Moreover, this court, in the case of Sipra Gupta & Ors. Vs. Sankarlal Paul, 2001 (3) GLT 229, had refused to interfere with the order passed by the learned trial court in allowing amendment to incorporate the plea of defaulter although such a prayer was filed after 11 years on the ground that the proposed amendment would not change the nature and character of the suit or alter/ substitute a new cause of action. It was held that in allowing such amendment, it is the duty of the court in exercise of its discretionary power to see whether the proposed amendment will cause such prejudice to the other side which cannot be compensated by cost. It was further held that it would be the plaintiff who will be highly prejudiced if the impugned order is negated i.e. by disallowing amendment of plaint.
15) The petitioners had specifically relied on (i) the case of Sobha Biswas (supra), in support of their prayer for amendment, and
(ii) the order dated 23.02.2016 passed by this Court in CRP (I/O) 85/2014, allowing the petitioners herein to file an application for amendment to bring the subsequent default on part of the respondent to tender/ pay monthly rent to the petitioners. However, the learned trial court had lost sight of both the said aspect and misdirected itself to treat the application for amendment under general law and not as interpreted by the Hon'ble Division Bench of this Court in the case of Sobha Biswas (supra) in respect of bringing subsequent default to the CRP(I/O) No.100/2017 Page 8 of 10 notice of the Court in ejectment suit filed under the provisions of the Assam Urban Areas Rent Control Act, 1972. Thus, this Court has no hesitation to hold that the impugned order passed by the learned trial court is vitiated by jurisdictional error and this Court is required to interfere in respect of the said impugned order under Article 227 of the Constitution of India. Moreover, in this case, the petitioners- plaintiffs are found to be seriously prejudiced if the amendment of the plaint as proposed by them is not allowed.
16) In view of the discussions above, the fact situation of the present case in hand is distinguishable from the facts involved in the four above mentioned cases cited by the learned Counsel for the respondent, viz., (a) Anil Chandra Nath Vs. Md. Aliul Islam and others, (2009) 2 GLR 207; (b) Jay Govind Yadav (Goala) Vs. Ahmed Tea Co. (P) Ltd., (2008) 5 GLR 514; (c) Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others, (2009) 10 SCC 84; State Bank of Hyderabad Vs. Town Municipal Council, (2007) 1 SCC 765. As this present case in hand is for ejectment of a tenant under the provisions of the Assam Urban Areas Rent Control Act, 1972, this Court is bound by the Division Bench judgment of this Court in the case of Sobha Biswas (supra), because it has been held therein that the land lord has a right to bring subsequent default on part of the tenant in paying monthly rent to the land lord and, as such, the case of the petitioners is squarely similar to the facts involved in the cases of (a) Abdul Matin Choudhury (supra), (b) Sobha Biswas (supra) and (c) Sipra Gupta (supra). Hence, this order need not be burdened by discussing the four cases cited by the learned Counsel for the respondent.
17) In view of the discussions above, the order dated 28.03.2017 passed by the learned court of Munsiff No.1, Kamrup (M), Guwahati in CRP(I/O) No.100/2017 Page 9 of 10 T.S. No.225/2013, is set aside by allowing this application and consequently, the prayer for amendment of the plaint under Order VI Rule 17 CPC vide petition No.856/2016 before the said learned Court stands allowed.
18) The parties are left to bear their own cost because this court has arrived at the finding that the application for amendment was filed at the earliest opportunity as indicated above.
19) The parties, who are duly represented by their learned counsels herein, shall appear before the learned trial court i.e. Court of Munsiff No.1, Kamrup (M), Guwahati on 10.11.2017, without any further notice of appearance, and by producing the certified copy of this order, seek further instructions from the said learned Court.
JUDGE MKS CRP(I/O) No.100/2017 Page 10 of 10