M.Y.EQBAL, J. - (1.) THIS revision application at the instance of defendant/tenant is directed against the order dated 23.7.2002 passed by Addl. District Judge, Dhanbad in Title Appeal No. 39/96 whereby he has allowed the amendment petition filed by the plaintiff landlord under Order VI, Rule 17, CPC for adding and inserting in the plaint the subsequent default as a ground for eviction.
(2.) THE plaintiffs/opposite parties filed Title (eviction) Suit No. 1/85 for a decree of eviction and for recovery of arrears of rent. It was alleged by the plaintiffs that the defendant is a monthly tenant in respect of the suit premises on payment of rent of Rs. 275/ -. The defendant defaulted in payment of rent since the month of October, 1983 upto December, and 1984. The suit was contested by the defendant stating inter alia that there is no default in payment of the rent. Learned Sub -Judge, Dhanbad in terms of judgment dated 17.10.1996 dismissed the suit by recording a finding that there is no default in payment of rent. Plaintiffs then filed Title Appeal being T.A. No. 39/96. During the pendency of the appeal an amendment petition was filed by the plaintiff/appellants alleging that the appeal was filed on 23.12.1996 and after filing of the appeal defendant neglected in payment of rent and as such he is defaulter. The said amendment was allowed by the Court below. I have heard Mr. M.M. Banerjee, learned counsel for the petitioner and Mr. S.L. Agarwal, learned counsel for the opposite parties.
(3.) FROM perusal of the record, it appears that during the pendency of the suit the trial Court on the application filed by the plaintiffs under Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act passed an order directing the defendants to deposit arrears of rent as also current and future rent. In compliance of the aforesaid order defendants deposited arrears of rent and also current rent till disposal of the suit. At the appellate stage the plaintiff sought amendment of the plaint by inserting that after disposal of the suit defendants failed to deposit the rent and also neglected to pay the rent. The proposed amendment sought for the plaintiffs is quoted herein below : "SCHEDULE OF AMENDMENT TO BE MADE IN THE PLAINT. After paragraph 4 of the plaint the following para 4 (a) may be added. The defendants were directed by order dated ..... passed under Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act to deposit current and arrear rent. The defendants/Respondents deposited rent upto September, 1995 to Nov. 1995 @ Rs. 275/ - p.m. i.e. Rs. 825/ - by challan No. 508 dated 16.9.1996 and thereafter the defendants/respondents failed and neglected to deposit rent month by month till date either in Court or by Money order as required under the Act. As such, the defendants are defaulters. Respondents deposited rent upto September, 1995 to Nov. 1995 @ Rs. 275/ - p.m. i.e. Rs. 825/ -by challan No. 508 dated 16.9.1996 and thereafter the defendants/respondents failed and neglected to deposit rent month by month till date either in Court or by Money order as required under the Act. As such, the defendants are defaulters under Section 11(1)(d) of the said Act. There has been no attempt of the defendants/respondents to deposit rent in Court although the appeal No. 39/96 was filed on 23.12.1996 against the judgment and decree passed in this suit on 2.11.1996.";