DWARKA PROSAD MAHAWAR Vs. GOPAL DAS MAHAWAR

JUDGEMENT

(1.) THIS re visional application under section 115 of the Code of Civil Procedure has been filed against an order dated 12. 8. 74 passed by a Judge of the City Civil court, Calcutta, in Ejectment Suit No. 78 of 1973 allowing an application for amendment of the plaint. The petitioner is the defendant Dwarka Prosad mahawar.

(2.) IN the original suit the plaintiffs prayed for the eviction of the defendant, a tenant of theirs in respect of the suit premises on the ground of default in payment of rents. The defendant appeared in the suit and filed an application under sections 17 (2) and 17 (2a) (b) of the West Bengal Premises Tenancy Act, 1956 and the court passed necessary orders upon that application. During the pendency of the suit, an application for amendment of the plaint was filed for incorporating in the plaint that the defendant without the knowledge, consent and permission of the plaintiffs erected permanent structure by construction and that he was constructing certain rooms on some space of the premises and thereby violated the provision of Clause (b) of section 108 of the Transfer of Property act, 1882, and as such the defendant was also liable for eviction from the suit premises. From the reading of the allegation it appears that the plaintiffs meant Clause (b) of Section 13 of the West Bengal Premises Tenancy act which was violated by the tenant. The defendant failed to pay any heed to the warning of the plaintiffs and went on with the construction stated to be illegal. The defendant neglected to demolish the construction already made. The plaintiffs added certain prayers including mandatory injunction for demolition or the alleged new construction and also permanent injunction restraining the defendant and his agents etc. from making any further work of construction. The learned judge of the City Civil Court on hearing the parties allowed the prayer for amendment of the plaint on the ground that the proposed amendment would not introduce any new case and that unless the prayer was allowed, there would be multiplicity of suits. Against that order allowing amendment the present application has been filed.

(3.) I have heard Mr. M. C. Surana, the learned Advocate for the petitioner and Mr. Roy Chowdhury for the opposite party-plaintiffs. It has been contended by Mr. Surana that the addition of a new ground for eviction in the plaint will change the character of the suit due to the inclusion of a new cause of action coming into existence after the filing of the suit. Mr. Roy chowdhury on the other hand has contended that the addition of a new ground for the eviction of the tenant will not change the nature of the suit and to avoid multiplicity of suits, the learned Judge below acted rightly by allowing amendment. For the amendment of pleadings the provision in order 6 Rule 17 of the CP. Code is relevant for our consideration in the instant case. It says that the court may at any stage of the proceedings allow amendment of the pleading of a party to the suit in such manner and terms as would be thought just and that amendment shall be allowed as would be deemed necessary for the purpose of determining the real question in controversy between the parties. In the present case from the allegations made, it is quite clear that originally the ground of eviction was under Clause (i) of sub-section (1) of section 13 of the West Bengal Premises Tenancy act, 1956 but by amendment the plaintiffs want to add another ground according to the provision of clause (b) at sub-section (1) of section 13 of the said Act. For the default in payment of rent on the part of the defendant, the plaintiffs determined the tenancy by a notice to quit and, according to their allegation, during the pendency of the suit the further ground sought to be incorporated in the plaint arose due to the alleged illegal construction by the defendant without the knowledge, consent and permission of the plaintiffs. This is no doubt a fact subsequent to the institution of the suit. This ground is also taken by the plaintiffs for the eviction of the tenant. The suit remains an ejectment suit. The plaintiffs want to add another ground for the eviction of the tenant. Whether that ground is based upon evidence can not is a different matter to be considered at the time of hearing of this suit. The introduction of a new ground, besides the ground already taken for eviction of the tenant, does not change the character of the suit. Rule 17 of Order 6 of the cp. Code says that the court may allow amendments which would be found necessary for the purpose of determining the real question in controversy between the parties. The real question in the present suit is whether the defendant is liable to be evicted according to the provision of law. According to the provisions of the West bengal Premises Tenancy Act there are several grounds for eviction. The ground sought to be added by the plaintiffs is no doubt relevant to see whether the defendant is liable to be evicted. Of course the facts which are alleged to be the basis for the added ground came into existence subsequent to the filing of the suit. If the facts are really true, then certainly the plaintiffs can evict the defendant on the added ground. But, if that ground is not available to the plaintiffs, and in case the plaintiffs' ground already taken in the plaint fails for some reason or other, then the plaintiffs have to file another suit subsequently on the facts stated in the petition for amendment. This procedure will not only give rise to the multiplicity of suits, but this will also cause harassment to both the parties, wastage of time, unnecessary expenses to the parties and also abuse of the processes of Court. This can be avoided if the subsequent amendment taken by the plaintiffs be allowed to be considered in the present suit along with the other ground already taken If the proposed amendment is allowed, there will be no hardship to the defendant, neither any injustice would be done to him if he is allowed to file additional written statement as against those allegations and to challenge the facts at the time of trial by adducing appropriate evidence rebutting the materials to be produced, if at all, by the plaintiffs.