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Arun Kumar Chatterjee v. Karuna Rakshit
Factual and Procedural Background
This is an application under section 115 of the Code of Civil Procedure directed against orders nos. 27 and 28 dated 11th May 1973 passed by Shri B. B. Sarkar, Munsif, 3rd Court, Alipore, in Title Suit No. 118 of 1972.
The opposite party filed a suit for ejectment against the petitioner solely on the ground of default in payment of rent. On 2 June 1972 the petitioner filed applications under section 17(1) and section 17(2) of the West Bengal Premises Tenancy Act, 1956.
Pursuant to the order on the section 17(1) application, the petitioner deposited rent for May 1972 and subsequent months in court. On 5 December 1972 the learned munsif disposed of the application under section 17(2) and directed the petitioner to deposit a specified amount within one month; the petitioner complied on 4 January 1973.
On 24 January 1973 the opposite party filed an application for modification of the order of 3 December 1972, seeking an order that the petitioner be directed to pay interest. The learned munsif (Shri Sarkar) held that payment of interest at the statutory rate under section 17(2) was mandatory, allowed an application under section 151 and modified the order of 5 December 1972 to direct deposit of Rs. 51.20 as interest within one month.
Separately, on 20 February 1973 the opposite party applied to amend the plaint under Order VI Rule 17 of the Code of Civil Procedure; that application was allowed by order no. 28 dated 11 May 1973. The opposite party sought to add several additional grounds for ejectment (use for office, subletting, nuisance, material damage).
The petitioner challenged both orders (interest-direction and amendment) by filing the present application under section 115 CPC. The learned judge (N.C. Mukherji, J.) heard submissions and reviewed the legal position and authorities before deciding to set aside both impugned orders.
Legal Issues Presented
- Whether, under section 17(2) of the West Bengal Premises Tenancy Act, 1956, a court is obliged to direct a tenant (defendant) to deposit interest at the statutory rate along with the arrears determined by the court.
- Whether the learned munsif was justified in modifying his predecessor's order to direct payment of interest after the petitioner had complied with the original order made under section 17(2).
- Whether the learned munsif rightly allowed the opposite party's application to amend the plaint (under Order VI Rule 17 CPC) by adding new grounds of ejectment after the tenant had obtained statutory protection by complying with the court's order under section 17(2), and whether such amendment would alter the nature of the suit or prejudice rights accrued to the tenant under section 17(4) of the Act.
Arguments of the Parties
Petitioner's Arguments (Mr. Dilip Kumar Sett)
- There is no provision in section 17(2) to allow payment of interest; the statutory scheme does not make interest mandatory when a court determines arrears under section 17(2).
- The petitioner complied with the provisions of section 17(1) and with the order passed under section 17(2) within the time directed by the court.
- The opposite party's application to modify the order so as to require payment of interest was filed after compliance and was unjustified.
- Concerning amendment, once the petitioner complied with the order under section 17(2) he acquired statutory protection under section 17(4); allowing the opposite party to amend the plaint to add new grounds of ejectment would deprive the petitioner of that protection and would be unjustified because the additional grounds were known to the opposite party earlier.
Opposite Party's Arguments (Mr. Bose)
- Under section 17(1) a tenant depositing admitted arrears of rent is liable to deposit interest at the statutory rate; it is reasonable that a tenant should also be liable to pay interest on the amount determined by the court under section 17(2) and directed to be deposited pursuant to that order.
- Regarding the amendment application, the nature of the suit remains a suit for ejectment even if new grounds are added; therefore, allowing amendment does not per se change the nature of the suit and is permissible. He relied on authorities holding that addition of fresh grounds in a suit for ejectment does not change the nature of the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Anil Ranjan Das Gupta v. B. N. Biswas, 54 C.W.N. 536 | That an amendment introducing a new ground did not alter the nature of a suit for ejectment and therefore could be allowed where the cause of action remained termination of tenancy. | The court noted this authority was relied on by Mr. Bose but observed that the facts of that case were different from the present case; the precedent does not control the result here because, in the present case, allowing the amendment would change the nature of the suit. |
| Zainab Bai & Ors. v. Narayang Chilrapat Co. Ltd., A.I.R. 1960 Bombay 194 | Authority for the proposition that subsequent addition of fresh grounds in an ejectment suit does not change the nature of the suit and is admissible. | The court recorded that this single-judge decision was cited for permitting amendment but held that the facts of that case differed and that permitting the amendment here would substantially change the suit from one based on default to one based on distinct grounds (subletting, nuisance, breach), which had been known earlier. |
| B. B. Sarkar and Sons v. Powell and Co., 60 C.W.N. 840 | The principle that if an order allowing amendment affects rights accrued to the other party or prejudices him, such an order would be tantamount to deciding a question touching the merits between the parties. | The court relied on this principle to assess whether allowing the amendment would prejudice the petitioner's rights accrued under section 17(4) and concluded that the amendment would indeed jeopardise those rights. |
| Unreported: Civil Revision No. 731 of 1969 (R. N. Dutta, J.) | Held that introducing a new ground after the suit was pending (there, adding default to an original reasonable-requirement claim) altered the nature of the case, and the amendment should not have been allowed. | The court expressly agreed with that finding and treated it as persuasive: it supported the view that the amendment in the present matter would alter the nature of the suit and therefore was wrongly allowed. |
Court's Reasoning and Analysis
The court divided the analysis into two principal branches corresponding to the two impugned orders.
On the question of interest under section 17(2):
- The judge examined the wording of section 17(2) (as referred to in the opinion) and the submissions of counsel. The petitioner (Mr. Sett) argued there is no provision in section 17(2) to allow interest; Mr. Bose argued by analogy with section 17(1) that interest should be payable.
- The court expressly agreed with Mr. Sett. It held that while section 17(1) renders a tenant liable to deposit interest when depositing admitted arrears, section 17(2) does not impose an obligation on the court to direct payment of interest when determining arrears under that subsection.
- Because the learned munsif had initially considered the circumstances and thought fit not to direct interest, it was wrong for his successor to hold that payment of interest under section 17(2) was mandatory and to modify the earlier order to require payment of interest.
- Accordingly, the court concluded that the munsif was not justified in modifying the earlier order to direct deposit of interest and set aside order no. 27 (the interest direction for Rs. 51.20).
On the question of amendment of the plaint (Order VI Rule 17 CPC):
- The court considered the chronology: the suit as filed on 3 April 1972 alleged habitual default; after service the defendant filed and complied with orders under section 17(1) and 17(2); the defendant paid the determined amount on 4 January 1973; only thereafter, on 20 February 1973, did the plaintiff move to amend the plaint to add multiple new grounds (use for office, subletting, nuisance, material damage).
- The court surveyed the authorities cited by counsel. It noted precedents where amendments adding grounds were allowed where they did not change the nature of the suit. However, it also relied on the unreported decision and on the principle in B.B. Sarkar & Sons v. Powell that an amendment which affects rights accrued to the other party or prejudices him would amount to deciding a question touching the merits.
- The judge concluded that compliance with the court's order under section 17(2) conferred, as envisaged by section 17(4), a right against eviction which would be jeopardised by allowing the amendment. Permitting the amendment would not be a mere addition of incidental facts but would convert the suit from one based on default to a suit based on wholly different grounds (subletting, breach of contract, nuisance, material damage), grounds that the opposite party had known earlier and gave no justification for their late inclusion.
- Given these circumstances and the authorities, the court held that the learned munsif was wrong to allow the amendment; such allowance would alter the nature of the suit and prejudice the petitioner's accrued rights.
Holding and Implications
Holding: Orders nos. 27 and 28 dated 11th May 1973 are set aside and the rule is made absolute.
Direct consequences of the holding:
- The order directing the petitioner to deposit interest of Rs. 51.20 (order no. 27) is set aside — i.e., no such direction for interest remains in force pursuant to that order.
- The order allowing amendment of the plaint (order no. 28) is set aside — the amendment granted on 11th May 1973 is not sustained by this court.
- There will be no order as to costs (the court explicitly directed that there will be no order for costs).
The opinion does not expressly state that it establishes a general binding precedent beyond its application to the facts before the court; the decision is confined to the legal conclusions and relief granted in this application (setting aside the two impugned orders and making the rule absolute).
N.C.Mukherji, J.:-
(1) This is an application under section 115 of the code of civil procedure and is directed against orders nos. 27 and 28 dated 11th may 1973 passed by shri b. B. Sarkar, munsif, 3rd court, alipore, in title suit no. 118 of 1972. The opposite party filed a suit for ejectment against the petitioner only on the ground of default in payment of rent. On 2. 6. 72 the petitioner filed an application under section 17 (1) and another application under section 17 (2) of he west bengal premises tenancy act, 1956.
(2) In pursuance of the order passed on the application under section 171 (1) , the petitioner deposited the rent for the month of may 1972, and also rent for subsequent months in the court. The learned munsif on 5th of december 1972 disposed of the application filed by the petitioner under section 11 (2) and directed the petitioner to deposit the amount mentioned in the order within one month from the said date. The petitioner complied with the said order and on 4th of january 1973 he deposited the rent as directed. On 24. 1. 73 the opposite party filed an application for modification of the order passed on 3. 12. 72 praying that the predecease in office of shri b. B. Sarkar while passing the order under section 17 (2) d not direct the petitioner 10 deposit the interest along with the sum determine ed. The petitioner filed an objection and after hearing the learned munsif shri sarkar observed that under section 17 (2) the payment of interest at the statutory rate was a mandatory provision and it was a mistake on the part of the court not to grant inheres that being so, the learned munsif allowed the application under section 151 and modified the order passed on 5. 12. 72 and directed the petitioner to deposit a sum of rs. 51. 20 being interest on the arrears with one month from date.
(3) Being aggrieved by the afore said order the present application bias been, filed. Mr. Dilip kumar sett appearing on behalf of the petitioner submits that there is no provision in section 17 (2) to allow inheres. According to the provisions of section 17 (2) a tenant can raise a dispute and it is necessary for the court to determine that dispute provided the tenant complies with the provisions of section 17 (1) of the act. In this case the provisions of section 17 (1) ware complied with by the petitioner. The petitioner's objection under section 17 (2) was considered by the court and ultimately the court directed the petitioner to deposit an amount within one month from the date of the order. The petitioner complied with the said order within time, long after that on 24th of january, 1973, the opposite party filed an application for modification of the said order.
(4) Mr. Bose contends that according to the provisions of section 17 (1) appellant while depositing admit tec arrears of rent is also liable to deposit interest on the aforesaid amount. It is therefore only reasonable that the tenant will also be liable to pay interest on the amount which is determined by the court and which amount he is directed to deposit in pursuance of an order on his application under section 17 (2). It is true that a tenant is liable to pay interest while depositing the arrears of rent according to the provisions of section 17 (1) but there is no provision for payment of interest while deposits the amount which he is directed to deposit according to the provisions of section 17 (2).
(5) Going through the provisions of section 17 (2) , i agree with the submission made by mr. Sett and hold that while passing the order under section 17 (2) directing the defendant to deposit the arrears of rent is not obligatory for the court to direct the defendant to deposit also the interest on the said amount. In the present case the court considered all the circumstances of the case and thought it fit not to pass any order directing the petitioner to deposit the interest, i am also of opinion that it was wrong on the part of the learned munsiff to hold that according to the provisions of section 17 (2) payment of interest at the statutory rate was mandatory. That being so, the learned munsiff was not justified in modifying the order passed by his predecessor on 5. 12. 72 which order was duly complied with by the petitioner. In the circumstances the order no. 27 dated he 11 the may of 1973 directing the petitioner to deposit interest to the tune of rs. 51. 20 is set aside.
(6) The opposite party on 20th february 1973, filed an application for amendment of plaint according to the provisions of order vi rule 17 of the code of civil procedure. That application was allowed by order no. 28 dated 11th of may, 1973. Mr. Sett contends that the learned munsif was wrong in allowing the application for amendment. He submits that the suit was filed by the opposite party on 3rd of april, 1972, only on the ground that the petitioner is a habitual defaulter and has failed and neglected to pay rent since the month of october 1971. No other ground was taken in the said suit. After the service of summons the petitioner duly filed an application under section 17 (1) and complied with the order passed on the said application. The petitioner also complied with the order passed on the application under section 17 (2). As has already been indicated that order under section 17 (2) was passed on 5. 12. 72 and the petitioner deposited the amount determined by the court on 4. 1. 73. It is after that on 20. 2. 73, the opposite party filed an application for amendment. In the said application the opposite party wanted to add several new grounds of ejectment viz. That the petitioner has been using the suit premises for office purpose in contravention of his agreement and without written or verbal consent of the opposite party, that the petitioner has sublet some portion of his tenancy, that the petitioner is guilty of nuisance and the petitioner has caused material damage to the premises. Mr. Sett contends that after the petitioner complied with the order passed on his application under section 17 (2) the opposite party realised that his suit was bound to fail according to the provisions of section 17 (4) of the act. Realising that situation he filed a frivolous application by which he wanted to add a number of grounds for ejectment hoping that he might succeed on one or more of those grounds. Mr. Bose, however, urges that it is to be seen whether the nature of the suit is changed, and if not, there is no bar in allowing an application for amendment. He contends that the original suit was one for ejectment and by subsequent amendment also the suit would remain one for ejectment though new ground; were sought to be added. Mr. Sett joins issue and contends that by complying with the order passed under section 17 (2) the petitioner could claim statutory protection and the petitioner could not be deprived of thru protection by allowing the opposite party to amend his plaint. In support of his contention mr. Bose refers to a decision reported in ((1) anil ranjan das gupta, v. B. N. Biswas 54 c. W. N. 536). In this case a suit for ejectment was brought on the footing of a notice to quit and of the bonafide requirement of the premises for the use and occupation of the landlord, at a time when the rent ordinance of 1946 was in force. The west bengal premises rent control act, 1948 having come in to force when the suit was pending, the plaint was sought to be amended by introducing a new ground or automatic termination of tenancy under section 12 (3) of the latter act, viz. That the tenant had failed to pay rent for three consecutive months. It was held by this court that the amendment should be allowed since it does not niter the nature of the case at all, which remains a suit for ejectment not does it niter the cause of action which was and is the termination of the tenancy. Mr. Bose next refers to a decision reported in (3) zainab bai and ors. V. Narayang chilrapat co. Ltd. A. I. R. 1960 bombay 194). It is a decision of a single judge and it merely laid down that
"whore a suit for ejectment of a tenant is filed on certain grounds subsequent addition of fresh ground in the plaint does not change the nature of suit and therefore, amendment of plaint by adding fresh ground is admissible". The facts of the cases referred to above are completely different from the facts of the present case. On this point mr. Sett refers to an unreported decision of our high court in civil revision case no. 731 of 1969. In that case the original suit was for ejectment on the ground of reasonable requirement. After three years a new ground, namely, the ground of default: was nought to be included in the plaint by way of amendment. R. N. Dutta, j. Held this alters the nature of the case and so the amendment should not have been allowed i fully agree with the above finding mr. Sett also refers to a reach decision of this court reported in (2) b. B. Sarkar and sons v. Powell and co. 60 c. W. N. 840) wherein it has been held
"if an order for amendment of plaint affected rights accrued to the other party or prejudiced him in any way, the order allowing the amendment would be an order deciding a question touching the merits of the controversy as between the parties.".
Considering the facts and circumstances of the case and at on the decisions referred to above i am of the opinion that the learned munsif was wrong to think that by complying with the court's order under section 17 (2) the defendant did not acquire a right against eviction as envisaged in section 17 (4) and the amendment would not jeopardise that right. 1 find that if the amendment be allowed the suit would be completely changed. Instead of the suit being one on the ground of default it would be a suit on the ground of sub leting. Breach of contract and nuisance. All these grounds if they really existed were known to the opposite party, and there was absolutely no justification why these grounds were to mentioned in the plaint. For the reasons stated above, the order passed by the learned munsif on 11. 5. 73 allowing the application for amendment must be set aside. In the result, the orders nos. 27 and 28 dated 11th of may 1973 are set aside and the rule is made absolute. There will be no order for costs. Rule made absolute
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