Jharkhand High Court
Manoj Kumar Sao Son Of Late Thambhi ... vs Binod Kumar Sao Son Of Late Thambhi ... on 1 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 317 of 2021
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Manoj Kumar Sao son of Late Thambhi Sao, resident of Village
Kharagdiha, PO Kharagdiha, PS Jamua, District Giridih.
... Petitioner
-versus-
Binod Kumar Sao son of Late Thambhi Sao, resident of Village
Kharagdiha in Chakmanjo Road, PO PS Jamua, District Giridih.
... Opposite Party
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CORAM : SRI ANANDA SEN, J.
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For the Petitioner : Mr. Ashim Kumar Sahni, Advocate
For the Respondents : Mr. Manjul Prasad, Sr. Advocate
Mr. Akhouri Prakhar Sinha, Advocate
Ms. Snehalika Bhagat, Advocate
Mr. Baban Prasad, Advocate
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ORDER
RESERVED ON 26.06.2023 PRONOUNCED ON 01/09/2023
In this Civil Miscellaneous Petition filed under Article 227 of the
Constitution of India, petitioner has challenged the order dated 17.08.2021
passed by the learned Civil Judge (Sr. Division) I, Giridih in Eviction Suit No.01
of 2014, whereby the learned Civil Judge (Sr. Division) I, Giridih has been
pleased to reject the application dated 20.02.2020 filed by the plaintiff under
Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the
plaint.
2. Learned counsel for the petitioner submitted that learned Trial
Court by rejecting the amendment application, committed grave illegality as
amendment was necessary for proper adjudication of the disputes between
the parties. As per him, at any stage, amendment of the plaint can be allowed
and the discretionary power should have been exercised in favour of the
plaintiff in this case, so as to bring to an end to the real dispute and issues
between the parties. As per him, the amendment is necessary because of the
fact that the defendant-opposite party has claimed title over the property in
question, which necessitated the plaintiff-petitioner to seek amendment of the
plaint by seeking a declaration of his independent right over the property.
3. Counsel for the defendant-opposite party submitted that by filing
the amendment application, plaintiff-petitioner wants to convert a eviction suit
to a title suit, which cannot be allowed. It is well settled principle that nature of
the suit cannot be allowed to be changed by filing an amendment application,
that too at the stage of final argument of the suit when evidence has already
been led.
4. From the submission of the parties, I find that the suit was at the
instance of the plaintiff-petitioner, wherein he has prayed to evict the
defendant from the schedule property. In the plaint, it has been mentioned that
there is a relationship of landlord and tenant between the plaintiff and the
defendant. The defendant was regularly paying rent and had stopped payment
of rent from June 2012, thus became a defaulter. It is his further case that the
defendant, on request made by the plaintiff, agreed to vacate the premises,
but he failed. Further, the plaintiff claim that he needs vacant possession of the
suit premises for the benefit of his wife and children for opening a Coaching
Centre, which will be run by his wife. On the ground of personal necessity and
default, the eviction suit was filed.
5. The defendant-opposite party had appeared and contested the
suit by filing his written statement. In his written statement, he had denied the
relationship of landlord and tenant and questioned the maintainability of the
suit also. He claimed independent title over the suit property by giving details
as to how, as per him, he is the title holder.
6. After the written statement was filed by the defendant, both the
parties led their oral evidence based on their respective pleadings and they
also filed documents, which were also exhibited. After closure of the evidence,
at the stage of final argument, plaintiff-petitioner filed an application under
Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the
plaint. He wanted to add some paragraphs after paragraph 10 and 12 of the
plaint and wanted to change the prayer portion also. By the amendment,
plaintiff-petitioner claimed for a declaration of his right, title, interest and
possession over the suit property and further prayed that after declaring title of
the plaintiff-petitioner the defendant-opposite party be evicted from the suit
premises.
7. Before proceeding further, it is necessary to take note of Order VI
Rule 17 of the Code of Civil Procedure, which reads as under: -
ORDER VI - PLEADINGS GENERALLY
17. Amendment of pleadings. - The Court may at any
stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the
real questions in controversy between the parties.
Provided that no application for amendment shall
be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial.
Though, as per the said provision, pleadings can be amended, to
determine the real dispute between the parties, but the proviso mandates that
no such application shall be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due diligence, the party could
not raise the matter before the commencement of trial.
8. In the instant case, the plaintiff wants to convert the eviction suit
into a title suit. The amendment application has been filed at the very fag end
of the suit, when the case is fixed for final argument. The fact that the
defendant had challenged the title of the plaintiff and claimed his independent
title is evident from the written statement itself. The plaintiff also was well
aware of the aforesaid fact as soon as he has received the written statement.
Inspite of having knowledge about the fact that the defendant has claimed
independent title and challenged the title of the plaintiff, the plaintiff kept mum
and led evidence based on the pleadings, which was filed by him. The suit
proceeded as an eviction suit under the Jharkhand Building (Lease, Rent &
Eviction) Control Act, where admittedly, the relationship of landlord and tenant
is adjudicated and there is no scope of adjudication of title of any of the
parties. It is also evident from the definition of the 'landlord' under the Act in
terms of Section 2(f) of the Jharkhand Building (Lease, Rent & Eviction)
Control Act, which reads as follows:-
"2. Definitions. - In this Act unless there is anything
repugnant in the subject or context:-
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) "Landlord" includes the person who for the time being
is receiving or is entitled to receive, the rent of the
building, whether on his own account or on behalf of
another, or on account or on behalf of for the benefit of
himself and others or as an agent, trustee, executor,
administrator, receiver, guardian or who would so receive
the rent, to be entitled to receive the rent, if the building
were let to a tenant."
9. Thus, it is clear that to become a 'landlord' it is not necessary that
the person should be title holder of the land or building in question. This is the
reason, in an eviction suit, title of the landlord is not adjudicated, rather parties
only have to prove that he is the landlord in terms of the Act.
10. In the case of Rajkumar Gurawara versus S.K. Sarwagi and
Co. (P) Ltd., reported in (2008) 14 SCC 364, the Hon'ble Supreme Court while
dealing with Order VI Rule 17 of the Code of Civil Procedure, at paragraphs
12, 13 and 18 of the said judgment has observed as under: -
"12. ...
The first part of the rule makes it abundantly clear
that at any stage of the proceedings, parties are free to
alter or amend their pleadings as may be necessary for
the purpose of determining the real questions in
controversy. However, this Rule is subject to proviso
appended therein. The said Rule with proviso again
substituted by Act 22 of 2002 with effect from 1-7-2002
makes it clear that after the commencement of the trial,
no application for amendment shall be allowed. However,
if the parties to the proceedings are able to satisfy the
court that in spite of due diligence they could not raise
the issue before the commencement of trial and the court
is satisfied with their explanation, amendment can be
allowed even after commencement of the trial.
13. To put it clear, Order 6 Rule 17 CPC confers
jurisdiction on the court to allow either party to alter or
amend his pleadings at any stage of the proceedings on
such terms as may be just. Such amendments seeking
determination of the real question of the controversy
between the parties shall be permitted to be made. Pre-
trial amendments are to be allowed liberally than those
which are sought to be made after the commencement of
the trial. As rightly pointed out by the High Court in the
former case, the opposite party is not prejudiced because
he will have an opportunity of meeting the amendment
sought to be made. In the latter case, namely, after the
commencement of trial, particularly, after completion of
the evidence, the question of prejudice to the opposite
party may arise and in such event, it is incumbent on the
part of the court to satisfy the conditions prescribed in
the proviso.
18. ... It is settled law that the grant of application for
amendment be subject to certain conditions, namely, (i)
when the nature of it is changed by permitting
amendment; (ii) when the amendment would result in
introducing new cause of action and intends to prejudice
the other party; (iii) when allowing amendment
application defeats the law of limitation. ..."
11. In the case of Asian Hotels (North) Ltd. Versus Alok Kumar
Lodha, reported in (2022) 8 SCC 145, the Hon'ble Supreme Court at
paragraph 36 thereof has held as follows: -
36. The High Court while allowing the amendment
application in exercise of powers under Order 6 Rule 17
of the Code of Civil Procedure has not properly
appreciated the fact and/or considered the fact that as
such, by granting such an amendment and permitting the
plaintiffs to amend the plaints incorporating the prayer
clause to declare the respective charges / mortgages void
ab initio, the nature of the suits will be changed. As per
the settled proposition of law, if, by permitting the
plaintiffs to amend the plaint including a prayer clause
nature of the suit is likely to be changed, in that case, the
Court would not be justified in allowing the amendment. It
would also result in misjoinder of causes of action.
12. Thus, analyzing the facts of the case in the light of the principles
laid down by the Hon'ble Supreme Court, I am of the view that the amendment
sought for is hit by the proviso to Order VI Rule 17 of the Code of Civil
Procedure as the suit is pending for final arguments. Further, if the
amendment, as sought for, is allowed, this simplicitor eviction suit will be
converted to that of a title suit and since the evidences have already been led
in this case, there has to be denovo trial, which is not permissible. Further,
from the facts of the case, as discussed earlier, the fact that the defendant had
challenged the title of the plaintiff and claimed his independent title is evident
from the written statement itself; the plaintiff also was well aware of the
aforesaid fact as soon as he had received the written statement; however,
inspite of having knowledge about the fact that the defendant has claimed
independent title and challenged the title of the plaintiff, the plaintiff kept mum
and led evidence based on the pleadings, which was filed by him. Thus, the
plaintiff-petitioner has also failed to qualify the test of due diligence which is
pre-requisite in proviso to Order VI Rule 17 of the Code of Civil Procedure.
13. Thus, in view of what has been held above, I find no illegality in
the impugned order dated 17.08.2021 passed by the learned Civil Judge (Sr.
Division) I, Giridih in Eviction Suit No.01 of 2014. The Trial Court has rightly
rejected the amendment application under Order VI Rule 17 of the Code of
Civil Procedure filed by the plaintiff-petitioner.
14. In that view of the matter, there being no merit, this Civil
Miscellaneous Petition is hereby dismissed.
(Ananda Sen, J.)
Kumar/Cp-02
