- (1.) THE present writ petition has been preferred for the following relief: (a) In the nature of certiorari for quashing the order dated 22.9.2007 passed by the learned Additional Munsif, Dhanbad in T.(E) S. No.55 of 2005 in terms of which a petition under order VI Rule 17 filed on behalf of the petitioners has been rejected. (b) Upon quashing the order dated 22.9.2007 be further pleased to direct the learned court below to proceed in accordance with law.
(2.) THE main contention raised by the learned counsel for the petitioner is that the learned Court below failed to exercise its jurisdiction vested in law and misconstrued the provision of Order VI Rule 17 C.P.C. He further refers to and relied upon section 11 of the Bihar Building (Lease Rent and Eviction) Control Act, 1982 to support his contention about the ground of eviction. Learned counsel for the respondents submits that the prayer is unsustainable since it was not raised at the time of filing of suit and the cause of action is subsequent and thus it changes the nature of plaint/suit. He also submits that the remedy is available for recovery of the amount or rent arrears which is provided in the act itself. I have considered the pleading and rival submission. The ground of eviction is provided under Section 11 of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 which provides for several grounds on which eviction suit can be filed and it includes breach of condition of tenancy, bonafide requirement, alteration and/or deterioration of building, subletting and default in payment of rent for period for two months, etc.
(3.) THE petitioner preferred the eviction suit initially on the ground of breach of condition of tenancy and also for bonafide requirement. During the pendency of the suit for eviction the respondent defaulted making the payment of rent which exceeded the period prescribed for two months and that led to filing Order VI Rule 17 application to add the additional ground for eviction as provided u/s 11 of the Act. The finding of the learned Additional Munsif, Dhanbad that it will change the nature of suit itself appears to be erroneous. Order VI Rule 17 of C.P.C. permits amendment if the nature of the suit is not changed and if the evidence not concluded.;