- (1.) D. K. Seth, J. After hearing Mr. A. N. Sinha, learned Counsel for the revisionist and perusing the order for amendment passed on 12th January, 2000 in SCC Suit No. 19 of 1997 by the learned Additional District Judge XVth Court, Kanpiir Nagar and the plaint and the amendment application, it appears that prayer (a) of the amendment application has since been disallowed, while the rest have been allowed. In the prayer (a), the plaintiff had sought to incorporate the date of construction of the building as on November, 1997 and its assessment by the Nagar Palika. That prayer having been refused, the argument of Mr. Sinha to the extent that it is wholly inconsistent and in fact has been sought to introduce a new case, looses its significance. Though, how ever, the question of maintainability of the suit was said to be saved for hearing at the time of disposal. Mr. Sinha contends that this cannot be done. The question of main tainability of the suit in a particular situa tion is a question of law, which can be raised at any point of time provided that pleadings are available in the plaint and the written statement in any manner what soever as provided in Order XL1, Rule 3 of the Code of Civil Procedure.
(2.) MR. Rajesh Srivastava, learned Counsel for the opposite party on the other hand opposes the contention of MR. Sinha and contends that the amendments have been rightly allowed. This Court sit ting in revision cannot interfere with the order unless there is any illegality or material irregularity in exercise of jurisdic tion. In this case, the Court had jurisdic tion to allow the amendment and there having been no illegality or irregularity in exercise of jurisdiction this Court cannot interfere with the order impugned. So far as the other grounds on other amendments which have since been allowed are concerned, the contention of Mr. Sinha is that the order can also not be passed allowing the same since it is a ques tion of possession and conversion of the suit into one for declaration of title. As such, the amendments having the affect of changing the nature and character of the suit, ought not have been allowed. This contention of Mr. Sinha ap pears to be misconceived for the simple reason the relationship between the lessor and the lessee relates either to realization of rent or for eviction. If it is a suit for realization of rent originally and sub sequently it is converted into a suit for possession, it does not change the nature and character of the suit since even if there is a default in payment of rent or denial of title of the landlord and setting up title by the lessee, there will be a forfeiture enti tling the lessor to enter into possession in terms of Section 111 (g) of the Transfer of Property Act.
(3.) SECTION 111 (g) of the Transfer of Property Act provides that a. 'lease for immovable property determines- " (a ). . . . . (g) by forfeiture; that is to say.- (1) in case the lessee breaks an express condition that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces the character as such by setting up a title in a third person or by claiming title by himself; or. . . . . . . . . . " In the present case, in the written statement the defendant having denied the title of the plaintiff, the case comes within Clause (g) of Section 111 of the Transfer of Property Act. Such question of forfeiture implies entering into possession. Thus, it does in no way changes the nature or char acter of the suit for realization of rent into a suit for possession. The question of title in such case is incidental to the determina tion of the question of forfeiture. Thus, it does not become a suit for title as such. In case of forfeiture, the question of title is implicit. Therefore, it cannot be said that simply by reason of denial of title by the lessee the question of title is raised to such an extent as to convert the suit into one for declaration or title outside the jurisdiction of the Small Causes Court. Neither it in troduces a new cause of action nor it chan ges the character of the suit.;