S. K. MAL LODHA, J. - (1.) THIS revision application has been preferred by the tenant (defendant petitioner) against the order dated February 18, 1978 passed by the learned Additional District Judge, Bhilwara, by which he accepted the application of the landlord (plaintiff non petitioner) under O. VI r. 17, C. P. C. dated January 7, 1978.
(2.) THE facts giving rise to this revision petition are these, - The petitioner is the defendant in the trial court and respondent in the lower Appellate Court. The plaintiff non-petitioner instituted a suit for arrears of rent and damages for use and occupation and ejectment against the defendant-petitioner in the court of Munsif, Bhilwara in respect of a shop described in para 1 of the plaint on November 10, 1972. The ejectment was sought on the ground of reasonable and bonafide necessity. The suit was contested by the defendant-petitioner on various grounds. The trial court framed various issues and recorded the evidence of the parties. It dismissed the suit for ejectment vide its judgment dated September 20, 1975 on the ground that reasonable and bonafide necessity has not been established by the plaintiff. Against the dismissal of the suit in respect of ejectment, the plaintiff-landlord preferred an appeal before the learned District Judge, Bhilwara. That appeal was transferred to the court of Additional District Judge, Bhilwara, for disposal. During the pendency of the appeal, an application under O. VI r. 17, and Sec. 151, CPC. was moved on behalf of the plaintiff landlord who was the appellant before the first appellate court. In this application, it was prayed that the plaintiff landlord may be allowed to add paras 3a and 3b to the original plaint. By these amendments, the plaintiff-landlord wanted to take additional grounds for ejectment, namely the ground of default under Sec. 13 (l) (a) and denial of the title of the landlord under Sec. 13 (1) (f) of the Rajasthaa Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) (hereinafter referred to as the Act. ). This application was submitted on January 1, 1978. The defendant-petitioner resisted this application by filing a reply dated August 21, 1978. The learned Additional District Judge by its order dated February 18, 1978 accepted the application whereby he permitted the amendment of the plaint as prayed for by the plaintiff-landlord on payment of Rs. 100/- as coats to the defend ant-petitioner. Being aggrieved by this order allowing amendment, the defendant-petitioner has come up in revision. Learned counsel appearing for the plaintiff-non-petitioner has raised a preliminary objection regarding the maintainability of the revision against the order of the learned Additional District Judge permitting the plaintiff-landlord to take additional grounds of default and denial of title of the landlord for ejecting the defendant-petitioner from the suit premises. He argued that none of the conditions for invoking the revisional jurisdiction of this court exists in this case. Apart from this, on the basis of the proviso to Sec. 115, CPC. he argued that by the order allowing amendment to the plaintiff-land lord, there has been no failure of justice or that the order under revision has caused any irreparable injury to the petitioner against whom it was made and therefore, the order allowing amendment cannot be revised. In this connection, learned counsel drew my attention to the decision reported in Harakchand vs. The State of Rajasthan (1), Keshardeo Chamria vs. Radha Kishan Chamria (2) and Narain Sonaji Sagne vs. Sheshrao Vithoba (3) Mr. Parakh, learned counsel for the non petitioner while supporting the order under revision submitted that the learned Additional District Judge was right in permitting the amendment to the plaintiff-landlord in view of the decision of this court in Prem Lal vs. Jadav Chand (4 ). Mr. R. L. Maheshwari, learned counsel appearing for the defendant-petitioner invited my attention to the order sheet dated March 23, 1978 in which it is mentioned that after hearing him and the learned counsel on behalf of plaintiff-non-petitioner, this revision was admitted and therefore, preliminary objection regarding the maintainability of the revision raised by the learned counsel for the plaintiff-non-petitioner should not be heard. In other words, his submission is that when the revision was admitted after hearing the learned counsel for the parties, it is not open to the learned counsel for the plaintiff non-petitioner to raise such an objection because giving effect to the objection would amount to reviewing the order of admission as the point regarding the maintainability of the revision would be deemed to have been decided when the court admitted the revision. In support of his argument, he relied on L. Hirday Narain vs. Income-Tax Officer, Bareilly (5 ).
(3.) MR. Maheshwari, learned counsel for the defendant-petitioner further argued that the trial court has, while deciding issue No. 3, dealt with the question of denial of the title of the landlord. In the memo of appeal filed by the plaintiff-landlord in the lower appellate court, the finding in this regard has also been assailed and in these circumstances, the amendment of the plaint by adding an additional ground of denial of the title of the landlord was not at all warranted. His further submission was that the lower appellate court did not apply its mind to this aspect of the matter that amendments in the plaint sought for by the plaintiff-non-petitioner was necessary for the purpose of determining the real question in controversy between the parties as required by O. VI r. 17, C P. G. He invited my attention to the amendment application and argued that the defaults have also not been specified in the application as is clear from para 3 (B which was sought to be added to the plaint. His submission in this regard was that these defaults have occurred during the pendency of the suit and therefore, on the basis of these defaults, ejectment cannot be claimed. According to him the dates of default give rise to a fresh cause of action accruing in favour of the plaintiff-non-petitioner, with regard to the ground of denial of the title of the landlord, he argued that denial must be anterior to the suit and therefore, the alleged denial in the written statement filed in the suit instituted by the plaintiff-non-petitioner cannot be made an additional ground for ejectment. In this connection, he cited Maharaja of Jeypore vs. Rukmani Pattamahdevi (6), (Mir) Haidar vs. Jankiram (7), Salla Edu Musalman vs. Jainab Bi (8 , Mahendra Singh vs. Rogra (9) and Ratanlal Manickchand Shah vs. Chanbasappa Sanganbasappa Chincholi (10 ). His submission is that defaults under Sec. 13 (1) (a) and denial of title of the landlord in the written-statement constituted separate and independent cause of action and as such on the basis of the cause of action relating to defaults and denial of title of the landlord, the amendment of the plaint should not have been permitted by the lower appellate court. In order to substantiate the arguments as to what is the cause of action, he relied on the decisions reported in Mohammed Khalil Khan vs. Mahbub Ali Mian (11), State of Madras vs. G. P. Agencies (12), Sahu Vanas-pati Traders vs. Union of India (13), Nagindas Ramdas vs. Dalpatram Iccharam alias Brijram (14) and M/s Ganesh Trading Go. vs. Moji Ram (15 ). While assailing the order under revision, he vehemently argued that the learned Additional District Judge should not have exercised his discretion in favour of the plaintiff-non-petitioner, for, the application for amendment was highly belated. In this connection, he submitted that the suit was filed on November 10, 1972. The defendant petitioner submitted his written statement on May 25, 1973. After trial, the suit for ejectment was dismissed on September 20, 1976 The plaintiff preferred appeal before the District Judge on October 16, 1976. The arguments in the appeal were heard on January 5, 1978 and thereafter, the appeal was posted for judgment by the learned Additional District Judge. On January 7, 1978, the application for amendment was moved. In these circumstances, because of the inordinate delay, learned counsel for the defendant-petitioner argued that the learned Additional District Judge should have rejected the application. Strong reliance was placed on Gauri Shanker vs. M/s Hindustan Trust & Co. (16) and Smt. Gangabai vs. Vijay Kumar (17) to show that the plaintiff was guilty of gross delay and laches and as such, the learned Additional District Judge should not have allowed him to take additional grounds in the plaint by way of amendment. He tried to distinguish Prem Lal's case (4) on the basis of which the learned Additional District Judge allowed the amendment of the plaint. He also tried to persuade me that the decision reported in Prem Lal's case (4) requires reconsideration and therefore, at any rate, the matter should be referred to a Larger Bench. I have given my most anxious and thoughtful consideration to the arguments advanced by the learned counsel for the parties. There is no room for debates that the plaintiff landlord, by means of the amendment of the plaint, wants to take additional grounds for ejectment. The grounds as stated above which he wants to take by way of amendment are under S. 13 (1) (a) and 13 (l) (f) of the Act. It is also true that these grounds have became available to him after the institution of the suit. The question whether the grounds which have become available after the institution of the suit can be taken as additional grounds by amending the plaint came up for consideration before a Division Bench of this court in Prem Lal's case (4 ). It was observed therein that, the grounds of eviction do not constitute a necessary part of cause of action for eviction by a tenant from an accommodation because even if untraversed, the plaintiff is still not entitled to succeed unless one or more of the grounds mentioned in S. 13 (1) of the Act are proved to exist. Even if the defendant in such suit does not appear and remains ex-parte, the plaintiff is still not entitled to a decree for eviction unless the court is satisfied about the existence of one or more of the grounds set forth in S. 13 (1 ). With regards to the amendment of the plaint by taking additional grounds, it was further observed that the effect of allowing the amendment will not alter the nature and character of the suit, nor will it cause any prejudice to the defendant and that it still remains a suit based on the original cause of action i. e. on determination of the jural relationship of the landlord and tenant. There is no question of taking away from the defendant any legal right which has accrued to him by lapse of time not does the amendment introduce a totally different, new and inconsistent case. It is, therefore, clear that the additional grounds sought to be incorporated in the plaint by the plaintiff-non-petitioner do not constitute part of cause of action for eviction of the defendant petitioner. The learned Additional District Judge while permitting to incorporate the two additional grounds for ejectment in the plaint relied on the decision in Prem Lal's case (4 ). Therefore, in the light of this, I have to test the preliminary object on raised by Mr. Parakh, learned counsel for the plaintiff-non-petitioner. It was submitted that Cl. (c) of S. 115 C. P. C. becomes applicable if the subordinate court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity in disposing of the application under O. VI R. 17, CPC. The Learned Addl. Distt. Judge had jurisdiction to decide the application for amendment of the plaint to submitted on behalf on the plaintiff landlord. In the Full Bench decision of this court in Harakchand vs. The State of Rajasthan (1) while considering cl. (c) of S. 115, CPC, it was observed: - ". . . Illegality or material irregularity must have occurred in the manner in which the jurisdiction of the subordinate court is exercised, i. e. in the manner in which that case is heard or decided. . . " The observations made in the order of reference by Boje, J. (as he then was) in Narayan Sonaji Sagna vs. Sheshrao Vithoba (3) in para 31 of the decision are as follows: - "i am clear that the words "illegally" and "material irregularity" do not cover either errors of fact or of law. They do not refer to the decision arrived at but to the manner in which it is raised. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribed have been duly complied with both in letter and in spirit. . . " Those observations of Bosa, J. in the order of reference were approved by their Lordships of the Supreme Court in Keshardao Chamria vs. Radha Kisan Chamria (2) in para 20 of the report. O. VI R. 17, CPC specifically provides for amendment of the plaint. Under S. 107, CPC, an appellate court has the same powers as that of the courts of original jurisdiction in respect of the suits instituted therein. In these circumstances, the lower appellate court was seized of the proceedings relating to the application for amendment of the plaint which was submitted during the pendency of the appeal. The learned lower appellate court was vested with jurisdiction to determine and decide that application. It entertained the application of the plaintiff landlord and afforded an opportunity to the defendant-petitioner to content that application. The defendant-petitioner submitted his reply to the application. It heard the arguments of the parties and thereafter, it allowed the application. It reached the conclusion judicially i. e. , after formally setting out reasons in writing. When such are the circumstances, I cannot do better than to quote Bose, J. again in Narayan Sonaji Sagne's case (3): - "it is equally patent that an application for amendment cannot be allowed automatically any more than it can be disallowed without consideration. There are rules which govern these matters and so some authority has to decide whether the application in question falls within the purview of those rules or not, and the only possible authority is the Court to which the application has to be made. In that event it is patent that that is the Court which is vested with jurisdiction to determine this matter, and if that Court entertains the application and considers it in accordance with the prescribed forms of law, that is to say, after hearing the parties and so forth, and reaches a conclusion judicially, that is to say, after formally setting out reasons in writing, I find it impossible to say either that the Court has not exercised a jurisdiction vested in it by law or that it has refused to exercise such a jurisdiction. What else is it doing when it decides the matter and either allows or disallows the amendment? What other Court has the authority and the power to entertain the application and decide it?" The learned Additional District Judge has, in accordance with the prescribed forms of law, allowed the application and, therefore, it cannot be said that it has exercised its jurisdiction illegally or with material irregularity. The Full Bench of this Court in Harakchand's case (1) opined that some of the provisions of the Code of Civil Procedure are mandatory and some of the provisions are discretionary and if the Court exercises its jurisdiction one way or the other while administering discretionary provisions, there will seldom be any ground for revision unless the irregularity is of such material nature that the High Court considers that a fit case is made out for interference in revision. As regards the breach of mandatory provisions of procedure, it was observed therein that the High Court may interfere in revision in a proper case because subordinate court has committed an illegality in the manner it has exercised its jurisdiction. The following extract is worthy of notice, - ". . . Even in such cases the High Court may decline to interfere because extraordinary power of supervision granted to the High Court under S. 115 CPC is not to be exercised unless a very good case has been made out for exercise of such power. " It is, therefore, abundantly clear that even if there is a breach of mandatory provisions of procedure, it is not incumbent upon the High Court to invoke its powers under S. 115, CPC unless a good case for that exercise is made out. In this case, as stated by me in the foregoing paras, the learned Additional District Judge, while relying on the authority of this court in Premlal's case (4), allowed the amendment of the plaint permitting the plaintiff-landlord to take additional grounds for ejectment under S. 13 (1) (a) and S. 13 (1) (f) of the Act. The older allowing amendment has been passed after the formalities which the law prescribes have been duly complied with In these circumstances, I am unable to hold that a good case for exercise of power under S. 115, CPC is made out. There is justification in the submission of the learned counsel for the plaintiff-non-petitioner that the order allowing amendment cannot be said to have occasioned a failure of justice. Besides this, since only additional grounds for ejectment have been permitted to be incorporated in the plaint, it cannot be said that the defendant-petitioner will be put to any irreparable injury because of the permission granted to the petitioner. ;