- (1.) This Court has heard the learned Advocates for the respective parties. The opposite party has filed a suit against the petitioner for a decree for a recovery of khas possession of the suit premises, mesne profit and permanent injunction. It appears that the opposite party has alleged that the petitioner has committed breach of some of the conditions of the lease in question and as such, the suit was brought on the ground of forfeiture of lease. In such suit the opposite party intended to amend his plaint by making an application to that effect and in the proposed amendment the opposite party intended to introduce the allegation that the lease, which was granted by the predecessor-in-interest of the opposite party in favour of the predecessor-in-interest of the petitioner for a term of 99 years, commenced from 1st February, 1909 and the said lease has expired on 31st January, 2008. According to the opposite party, the lease expired during the pendency of the suit and in order to bring such subsequent event on record, the application for amendment of the plaint was filed. The amendment application was contested by the petitioner in the learned Court below and the learned Trial Court by the impugned order has allowed the application for amendment of plaint by observing, inter alia, that the proposed amendment will not change the nature and character of the suit.
(2.) The learned Advocate for the petitioner has submitted that proper reason has not been assigned by the learned Trial Court while passing the impugned order and the learned Trial Court also did not take into consideration the fact that inconsistent pleadings have been sought to be introduced by the opposite party. THE said learned Advocate also submitted that paragraph No. 22 of the original plaint, which deals with the cause of action, has also not been sought to be amended and as such the proposed amendment cannot be allowed. THE learned Advocate cited a decision in the case of P.A. Ahammed Ibrahim vs. Food Corporation of India, 1999 AIR(SC) 3033 in support of his contention that if the proposed amendment changes the nature of the suit and introduces a case in- consistent with the case already made out by the opposite party, then such proposed amendment should not be allowed. It appears from the facts of the said reported case that that was a case where an application under section 21 of the Arbitration Act, 1940 was sought to be amended so as to convert the said application as a plaint for recovery of money. Thus, factually the said reported case was decided on absolutely different set of facts and the present case is quite distinguishable from the facts of the said reported case. It is true that the learned Trial Court should have assigned proper reasons in detail while allowing the application for amendment of the plaint but this Court is of the view that since the matter has been brought for decision before this Court, it would be proper to decide the matter as to whether or not the proposed amendment should be allowed rather than remand the matter back to the learned Trial Court for another round of litigation. The learned Advocate appearing on behalf of the opposite party does not dispute that the suit was initially filed on the ground of forfeiture of lease but he submits that the plaintiff is entitled under the law to bring subsequent facts on record so as to avoid multiplicity of proceedings and shorten the litigation. He submits that the suit for recovery of possession will remain to be a suit for recovery of possession even if the proposed amendment is allowed. He submits that only another ground will be added in the plaint and that is the ground for eviction of the petitioner after the expiry of the lease. The said learned Advocate has cited a decision in the case of R.D. Anklesaria vs. Kamala Roy, 1977 AIR(Cal) 464 which took into consideration another in the case of Tinkari Das vs. Jamuna Bala Dasi, 1973 AIR(Cal) 448. In paragraph 8 of the said R D ANKLESARIA v. MRS KAMALA ROY, 1977 AIR(Cal) 464, the Hon'ble Court considered TINKARI DAS v. JAMUNA BALA DASI, 1973 AIR(Cal) 448 and observed that in the said case a suit for eviction of tenant on the ground of forfeiture of lease was initially made and during the pendency of the suit an amendment of plaint was sought for on the ground that in the meantime the lease had expired by efflux of time and eviction was also prayed on the said ground of expiry of lease and in the said decision the Hon'ble Court held that for shortening the litigation and for ends of justice the Court was entitled to take into consideration the subsequent events even if there was a change in the ground of eviction and the nature and character of the suit being suit for recovery of possession and for eviction of the defendant was not in any way affected. Thus, it appears that the decision that was TINKARI DAS v. JAMUNA BALA DASI, 1973 AIR(Cal) 448 was relied upon in the subsequent decision R D ANKLESARIA v. MRS KAMALA ROY, 1977 AIR(Cal) 464 by a Hon'ble Division Bench of this Court. The said learned Advocate relied upon another decision TARA PROPERTIES PVT LIMITED v. ALLIED REMPLOYEES STATE INSURANCE CORPORATIONNS AND CHEMICALS LIMITED, 1989 AIR(Cal) 192 Tara Properties Pvt. Ltd. vs. Allied Resins and Chemicals Ltd., in support of his contention that in the circumstances as existing in the present case, amendment should be allowed for shortening the litigation. He has also referred to a decision in the case of Pasupuleti Venkateswarlu vs. Motor and General Traders, 1975 AIR(SC) 1409 wherein the Hon'ble Supreme Court has been pleased to observe in paragraph 4 of the said reports that if a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. The Hon'ble Supreme Court was further pleased to observe that equity justifies bending the rules of procedure where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. In the present case, it appears that even if the proposed amendment is allowed, there is no chance of there being any change in the nature and character of the suit inasmuch as the suit will remain to be a suit for recovery of possession. The contention of the learned Advocate for the petitioner with regard to the paragraph in the plaint dealing with the cause of action, it will be for the plaintiff/opposite party to prove his case at the time of trial and it will be a matter of argument between the parties as to whether 'or not the plaintiff/opposite party can succeed in the suit on the basis of the pleadings regarding cause of action as it exists unless it is amended in future. With regard to the contention of the learned Advocate for the petitioner about the inconsistency in pleadings, this Court is of the view that the amendment sought to be introduced by the plaintiff/opposite party does not bring any inconsistence in the pleadings. The learned Advocate for the petitioner has raised another point that is the learned Trial Court has not granted any opportunity to the petitioner to file any additional written statement. Such contention has substance and, therefore, this Court directs that the learned Trial Court shall provide reasonable opportunity to the defendant/petitioner to file additional written statement. It has been submitted by the learned Advocate for the plaintiff/opposite party that the amended plaint has already been filed in the learned Court below.
(3.) The application under Article 227 of the Constitution of India is disposed of in terms of the above order. Urgent xerox certified copy of this order, if applied for, be given to the parties as early as possible on compliance of usual formalities.;