K.M.YUSUF, J. - (1.) The appeal and the application for stay are taken up together for hearing. The plaintiff-appellant. M/s. Tara Properties Pvt. Ltd., instituted a Title Suit No.1583 of 1981 in the City Civil court at Calcutta against the defendant-respondent for a decree of recovery of khas possession of the suit premises and for other reliefs. The fact of the case, in short, is that the appellant by an Indenture of lease dt. 29th Sept, 1963 granted lease to the respondent in respect of the suit premises at 13, Camac Street, Calcutta, at a monthly rent of Rs. 3,851/- including service charges, for a period of 21 years, the said lease was to expire on 31st Dec, 1984. In the meantime the respondent failed to pay the enhanced share of Corporation taxes with effect from 1st April, 1973 in violation of the terms of lease and also defaulted in payment of rents and service charges for the months of June 1980, Oct. 1980 and from Jan 1981 onwards. The plaintiff by its Advocate's letter dt. 21st April, 1981 determined the lease and asked the respondent to quit, vacate and deliver the peaceful possession of the suit premises. In the meantime the lease also expired on 31st Dec. 1984 and as per terms and conditions of the said deed of lease the respondent failed and neglected to vacate the suit premises in spite of the termination of the lease by efflux of time and remained in illegal occupation of the suit premises. In February 1985 the appellant filed a suit being Suit No. 82 of 1986 against the respondent in the High Court claiming mesne profits and other reliefs. In July 1986 the respondent made an application before the High Court for transfer of the Title Suit No. 1583 of 1981 from the City Civil Court to the High Court under Cl.13 of the Letters Patent and by an order dt. 24th Nov, 1986 Pratibha Bonnerjea, J. directed the transfer of suit from the City Civil Court to High Court and further directed that the Title Suit No. 1583 of 1981 and the Suit No. 82 of 1986 be heard together. Now the said Title Suit of City Civil Court transferred to the High Court has been numbered as Extraordinary Suit No. 6 of 1987. Subsequent to the filing of the title suit in the City Civil Court the respondent carried out certain addition and alteration in the suit premises which damaged the main outer wall of the suit premises and also sublet a portion of the suit premises, both in gross violation of the terms and conditions of the said lease. In Sept. 1987 the appellant made an application in the Hon'ble High Court for amendment of plaint as follows :- "9A. The defendant has carried out additions and alterations in the suit premises without the consent of the plaintiff and in breach of the terms and conditions of the said lease dt. 29th Sept. 1963. 9B. By virtue of the said addition and alteration in the suit premises by the defendant, the main outer wall of the suit premises has been damaged. 9C. The defendant has sublet and continues to sublet a portion of the suit premises in breach of the terms and conditions of the said lease dt. 29th Sept. 1963." After hearing the parties Mr. Justice Umesh Chandra Banerjee by his order dt. 8th Dec. 1987 allowed the amendments so far those related to additions and alterations and damage to the wall as contained in paras 9A and 9B of the amendment petition but disallowed the amendment as contained in para 9C on the ground of subletting. Being aggrieved by the said order the instant appeal has been preferred.
(2.) The respondent by an Affidavit-in-Opposition has taken the preliminary point that the order under appeal is not an appealable order, and further strongly refuted the allegations of the appellant as regards the additions and alterations of the suit premises and the damage of the wall as well as the allegation of subletting. With the said Affidavit-in-Opposition the cross-objection being Annexure-'A' has also been annexed against the two amendments allowed by the learned Trial Judge. It is contended in the Affidavit-in-Opposition that the amendment is designed to introduce totally a different, new and inconsistent case and cause of action and such amendment is not necessary for the purpose of determining the real question in the two suits. It is further contended in the said Affidavit that the main issue in two suits is whether the respondent is a tenant within the meaning of the Premises Tenancy Act, 1956 or not. The Affidavit also denies all other statements made in the application.
(3.) Mrs. Pal, the learned Counsel appearing for the appellant, submitted that the Court below was wrong in not allowing the amendment of subletting as contained in para 9C of the amendment petition. Such addition of new ground of eviction in no way changes the nature of the suit for eviction nor indicts any cause of action. More so amendment relating to addition and alteration of the suit premises was allowed by the Court of first instance. She has referred to few cases in support of her contention, namely, (i) D.P. Mahawar v. Gopal Das Mahawar reported in 1976 Cal HC (N) 453 : 80 Cal WN 269; (ii) A.R. Dasgupta v. B. N. Biswas reported in 54 Cal WN 536 (iii) J.N. Das v. K.K. Banerjee reported in AIR 1977 Cal 49; (iv) Tinkari Das v. Jammuna Bala reported in AIR 1973 Cal 448 and (v) Nil Kantha Roy v. D.N. Mullick reported in (1975) 1 Cal LJ 396 and also some cases of other High Courts.;