SHARMA, J. - (1.) MATTER was heard finally with the consent of the parties. In the instant revision petition the defendant petitioners seek to challenge the order dated October 31, 2000 of the learned Additional District Judge Baran whereby the application moved under Order 6 Rule 17 CPC by the plaintiff respondent seeking amendment of plaint was allowed. The parties hereinafter shall be referred in the same manner as they were arrayed in the plaint.
(2.) CONTEXTUAL facts depict that the plaintiff land lord during the pendency of suit for eviction moved an application u/o. 6 Rule 17 CPC. on August 9, 2000 with the averments that rent from November 7, 1999 to August 6, 2000 was not paid by the defendant tenants, therefore this ground of default in making payment of rent may be allowed to be added in the plaint. The defendants did not file reply to the application and opposed it orally. Learned court below allowed the application as indicated hereinabove. Mr. B. L. Mandhana, learned counsel for the defendant petitioners canvassed that lis is fought on the cause of action which existed at the time of filing of the suit. As the default was allegedly made much after the filing of the suit, it could not have been permitted to be incorporated in the plaint and as it was a new cause of action a separate suit ought to have been filed. Reliance was placed on Kesho Ram Passey vs. Dr. P. C. Tandon and another (1) and Ashok Kumar vs. Suresh Chand Per contra, Mr. P. S. Asopa, learned Senior Advocate supported the impugned order and contended that there is no prohibition against allowing a cause of action arising subsequent to the filing of the suit to be incorporated in the plaint by way of amendment. Reliance was placed on Udai Ram vs. Smt. Ladi Bai Admittedly suit was filed on November 5, 1999 and the defendants submitted written statement on August 7, 2000. Thereafter the plaintiff on August 9, 2000 moved an application under Order 6 Rule 17 CPC seeking amendment in plaint by incorporating the ground of default in making payment of rent. In the case of Prem Lal vs. Jadav Chand (4), the trial court allowed the application of the plaintiff seeking to amend the plaint with a view to incorporate an additional ground u/sec. 13 (1) (a) alleging that the defendant had neither paid nor tendered the amount of rent for more than six months. While hearing the revision petition against the said order learned Single Judge referred the matter to the Division Bench for consideration of the correctness of Rajeshwar Dayal vs. Padam Kumar Kothari (5) and Kedar Nath vs. Pana Devi (6), rendered by Hon'ble Jagat Narain J. holding that application for amendment of plaint seeking to introduce a new ground of eviction i. e. default based on section 13 (1) (a) cannot be allowed where such ground arises after the institution of the suit in as much as that would be tentamount to allowing the plaintiff to include a cause of action which had not accrued on the date of the suit. The Division Bench overruled the above findings of Hon'ble Jagat Narain J. and observed that grounds mentioned in Sec. 13 (1) do not constitute a necessary part of cause of action for eviction. The Division Bench did not interfere with the order of the trial court allowing amendment in the plaint, and dismissed the revision petition. It was held in para 24 of the judgment that- "introduction of a new case is no ground for refusal so long as the defendant has an opportunity of meeting the new case by amendment of written statement and by leading in support of that defence. "
(3.) IN Lallu Narain vs. Ratan Chand Lunia (7), following question was referred to the Division Bench - "does the decision of this Court in Prem Lal vs. Jadav Chand hold good after the decision of the Supreme Court in V. Dhanpal Chettiar vs. Yeshodai Ammal (8)" Answering the reference the Division Bench observed in para 51 thus - ". . . . The observation regarding furnishing of cause of action based on determination of tenancy, does not hold good in view of the aforesaid decision of the Supreme Court and the suit for eviction is to be founded on the grounds set forth in the Rent Act. So far as the question of amendment of the plaint is concerned, it may be stated that adding a new ground stands altogether on a different footing. . . To that extent the view taken in Prem Lal's case stands overruled. " This court in Udai Ram vs. Ladi Bai (supra), had occasion to consider Prem Lal vs. Jadav Chand (supra) and it was indicated in para 14 thus- "it is therefore clear that in accordance with the view taken by the Division Bench in Prem Lal's case (supra) even if we assume that every ground of eviction enumerated in Sec. 13 of the Act, constitutes a separate cause of action, there is no prohibition against allowing a cause of action arising subsequent to the filing of the suit being relied upon by way of amendment. " It will be useful at this juncture to have a look at section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Rent Act.) Sec. 13 is a very long section containing nine Sections, twelve special clauses in sub-sec. (1) and two provisos. Major part of law relating to eviction of tenant is covered under this provision. Sec. 13 (3) of the Rent Act is a mandatory provision casting a duty on the court to suo moto determine the amount of rent provisionally on the first day of hearing or any other date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and before framing of the issues. Mr. Mandhana learned counsel for the defendant contended that in view of provisions contained in Sec. 13 (3) of the Rent Act, the ground of default which did not exist at the time of institution of the suit could not have been allowed to be incorporated in the plaint. According to Mr. Mandhana learned counsel, the defendant was continuously depositing the rent in the bank account of the plaintiff but the plaintiff mischievously closed his bank account in order to create the ground of default. As the ground of default is based on new cause of action, a separate suit is maintainable and this new ground of default can not be incorporated in the plaint. ;