Patna High Court - Orders
Shashi Shekhar Pathak vs Radha Kant Pathak & Ors on 14 August, 2014
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3822 of 2012
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1. Shashi Shekhar Pathak S/O Late Kapildeo Pathak R/O Vill-Pandarak
Near Puniyark Surya Mandir, P.O.& P.S.Pandarak, Distt-Patna
.... .... Petitioner/s
Versus
1. Radha Kant Pathak S/O Late Hirshikesh Pathak R/O Vill-Pandarak Near
Puniyark Surya Mandir, P.O.& P.S.Pandarak, Distt-Patna
2. Sri Kant Pathak S/O Late Hirshikesh Pathak R/O Vill-Pandarak Near
Puniyark Surya Mandir, P.O.& P.S.Pandarak, Distt-Patna
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jashawir Singh Arora, Advocate
Mr. Amit Bhushan
For the Respondent/s : Mr. Bhupender Narayan Singh
Mr. Ranjan Kumar
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
C.A.V. ORDER
8 14-08-2014This writ application under Article 227 of the Constitution of India is filed against the order dated 20.10.2011 passed in Title Eviction Suit No. 03 of 2006 whereby the prayer of the plaintiff-petitioner for the amendment of the plaint filed under Order VI Rule 17 of the C.P.C. has been rejected.
The brief fact of the case is that late Kapildeo Pathak, father of the plaintiff-petitioner filed Title Eviction Suit No. 03 of 2006 against the defendants-respondents on default of payment of rent and for payment of arrears of rent of the suit premises under Section 11(1)(d) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 with contention that the suit Patna High Court CWJC No.3822 of 2012 (8) dt.14-08-2014 2 premises appertaining to Khata No. 372, Thana No. 10, Plot No. 5302 having an area of 12 dhoor situated at Mauza Pandarak, P.S. Pandarak, District - Patna. Originally, the suit premises belongs to Thakur Misir and thereafter, the same came in possession of Kapuri Misir by succession and the said Kapuri Misir gifted the property to Kapildeo Pathak and he acquired the right and title of the said property. Thereafter, Kapildeo Pathak let out the said premises to Hrishikesh Pathak, father of the defendant, who continued as tenant in the said premises paying the rent, but later on the greed developed in the mind of the defendants-respondents and they got fraudulently entered their names in the record of survey in course of Revisional Survey in Khanapuri suppressing the fact regarding tenancy and the defendants-respondents also stopped payment of rent since 01.04.2006.
The defendants-respondents filed their written statement denied the relationship of landlord and tenant in between plaintiff and defendants and also challenged the title of the plaintiff with contention that the alleged deed of gift executed by the Kapuri Misir in favour of late Kapildeo Pathak, father of the plaintiff-petitioner is forged and fabricated. In fact, the suit premises, which is part and parcel of survey plot no. 5302, Khata No. 372, Thana No.10 situated Mauza Pandarak, P.S. Pandarak, Patna High Court CWJC No.3822 of 2012 (8) dt.14-08-2014 3 District - Patna is recorded in the revisional khatiyan in the name of defendants as their residential house in an area of 8 decimal and the plaintiff has no right title over the suit premises.
Plaintiff-petitioner in course of hearing of the suit filed an application on 19.07.2011 under Order VI Rule 17 of the C.P.C. to add the relief no.1(A) in para-32 alternatively for declaration of the title of the plaintiff to suit premises and also to add the valuation of the suit premises as Rs. 25,000/-. On hearing both the parties, learned Munsif, Barh rejected the aforesaid application of the plaintiff-petitioner through the impugned order on 20.10.2011.
Learned counsel appearing on behalf of the petitioner submits that through the proposed amendment, the plaintiff only want to amend the plaint adding the relief for declaration of the title with addition of the valuation of the suit premises to convert title (eviction) suit into title suit as the defendants-respondents have challenged the right title of the petitioner. As such, in view of Order VII Rule 7 C.P.C. the amendments had to be allowed but the learned trial Court has illegally rejected the petition arrived at the conclusion through the proposed amendment the nature of the suit will be changed. Learned counsel of the petitioner also submits that in eviction suit Patna High Court CWJC No.3822 of 2012 (8) dt.14-08-2014 4 the right title of the plaintiff is challenged by the defendants- respondents. Therefore, the plaintiff prayed through amendment application for conversion of the title eviction suit into regular title suit, which is permissible in law but the learned Munsiff illegally rejected the prayer through the impugned order. The learned counsel for the petitioner in support of his submission placed reliance on decision 1999(2) P.L.J.R. 148 (Maheshwar Prasad Sharma Vrs. Shobha Devi), 2001(3) P.L.J.R. 233 (Harihar Prasad Vrs. Biresh Manjhi) and 2007(3) P.L.J.R. 778 (Balram Medical Hall Vrs. Rajendra Prasad & Ors.) Learned counsel appearing on behalf of the defendants-respondents submits that after closing the evidence of the defendants-respondents, the plaintiff-petitioner filed an application to admit the sale deed dated 28.12.2006 executed by the father of the defendants-respondents in favour of the Basudev Singh and the said application was rejected on 07.04.2011. Thereafter, the plaintiff filed the application on 19.07.2011 seeking the amendment in the plaint for declaring his title only to delay disposal of the title eviction suit. It is also submitted that the defendants-respondents after appearing in the suit filed the written statement on 18.10.2006 denying the right title of the plaintiff- petitioner but plaintiff-petitioner did not take steps for amendment Patna High Court CWJC No.3822 of 2012 (8) dt.14-08-2014 5 in the plaint at that time. Moreover, through the proposed amendment, which has been rejected through the impugned order, the plaintiff-petitioner wants to change the nature of the suit which is not permissible under Order VI Rule 17.
In case of Maheshwar Prasad Sharma Vrs. Shobha Devi, 1999(2) P.L.J.R. 148, this Court observed that where the complicated questions of title arises the court may ask the plaintiff to seek relief in a properly constituted suit or may convert the suit into a regular title suit and decide the question of title on payment of proper court fee and in appropriate cases grant the plaintiff the decree of eviction on the basis of title under Order VII, Rule 7 of the Code of Civil Procedure.
In case of Harihar Prasad Vrs. Biresh Manjhi 2001(3) P.L.J.R. 233 his Lordship has held that in a suit for eviction if title is challenged then to avoid further litigation the plaintiff can transform it into a regular title suit for the purpose of declaration of title for that he is to pay ad volarem court fee.
Similarly in case of Balram Medical Hall Vrs.
Rajendra Prasad & Ors. Court also observed in paragraph-32 as follows :
"As a matter of fact, the entire arguments of learned counsel for the petitioner appear to be based upon a presupposition that the eviction suit Patna High Court CWJC No.3822 of 2012 (8) dt.14-08-2014 6 can in no circumstances be converted into a title suit. The same does not appear to be the legal position as is evident from what was stated by this Court in Maheshwar Prasad Sharma's case (supra) and in Rajesh Kumar Agrawal's case (supra). In Gopal Sharan Singh's case (supra) relied upon by the petitioner, this Court had merely held that the eviction suit cannot be converted into title suit at the instance of third party but not that it cannot be done at the instance of the plaintiff. That being the settled legal position no fault can be found in the decision of the Court permitting the eviction suit to be converted into a title suit so that all matters in controversy between all concerned parties may be settled once and for all. In fact, the eviction suit was filed 20 years back in the year 1987 and during the pendency of the same it is alleged that the tenant had handed over possession of the premises to his alleged landlord, who claims to be a purchaser from one of the co-shares of the plaintiff-opposite parties when the family was joint, after partition of the joint family properties".
In view of the provision of Order VII Rule 7 of the Code of Civil Procedure and the aforesaid decisions, if in title eviction suit, the defendant challenged the title of plaintiff. The plaintiff can pray for declaration of title on payment of proper Court fee for the said reliefs to convert the Title (eviction) Suit into regular Patna High Court CWJC No.3822 of 2012 (8) dt.14-08-2014 7 Title Suit. It is true that the plaintiff has not filed the amendment petition soon after filing the written statement by the defendants but on the ground of delay the amendment petition could not be rejected. For the just decision of case finally and to avoid further litigation the prayer of amendment ought to have been allowed by the trial Court. For the delay and harassment caused to defendants, the Court may award cost for the purpose of compensation to the defendants.
Under the aforesaid facts and circumstances, this writ application is allowed and the order dated 20.10.2011 passed by the learned Munsif, Barh in Title (Eviction) Suit No. 03 of 2006 is hereby set aside and the matter is sent back to the trial Court to allow the amendment of the plaintiff-petitioner giving scope to pay the required Court fee subject to deposit of cost of Rs. 2000/- within four weeks from the date of receipt/production of a copy of this order which will be payable to the defendants- respondents.
(Rajendra Kumar Mishra, J.) Shail/-
N.A.F.R. U