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Annapurna Agrawal And Others v. Jitendra Kumar Sinha And Another

Patna High Court

Nov 9, 1983

Judgment

Subsequent
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Factual and Procedural Background

The plaintiffs instituted Title Suit No. 31 of 1982 in the Court of the First Munsif, Gaya, seeking eviction of the opposite parties under the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1982 ("the Ordinance"). By Section 1(3) of the Ordinance, Section 28 came into force immediately and the remaining provisions were deemed to have come into force on 1 April 1981.

The plaintiffs' reliefs included: (a) decree for eviction of the defendants from the suit premises (Schedule A); (b) decree for Rs. 2,000 as arrears of rent against defendant No. 1; (c) decree for Rs. 54.60 towards notice costs against defendant No. 1; (d) costs of the suit; and (e) any other reliefs to which plaintiffs were entitled.

The plaintiffs' pleaded grounds for eviction, in summary, were: (i) sub-letting by defendant No. 1 to defendant No. 2 (para 2(h)), and (ii) non-payment of any rent by defendant No. 1 up to the filing of the suit (para 2(i)). Plaintiffs allege they sent registered notices through their lawyer which were served, but defendant No. 1 ignored them, leading to institution of the suit (para 2(k)).

The defendants filed a written statement denying key allegations. Their case, in short, was that defendant No. 2 was inducted into the premises on a monthly rental of Rs. 100 (stated as 1-5-1982 in the pleading, with the opinion noting that the year '82' may be a mistype for '81 because the suit was filed on 2-3-1982), that she carried on the business "Krishi Kendra" and paid rent regularly; that defendant No. 1 had no interest in the business or in negotiations for the tenancy; that plaintiffs did not habitually give rent receipts; that the Bihar Buildings (Lease, Rent and Eviction) Control Act had lost its force and that defendant No. 2 could not move the Controller; and denial of any tenancy for a fixed period. The main defences were that defendant No.2 was not a sub-lessee and that rent had been regularly paid (paras 13–16).

On 13-5-1983 the plaintiffs sought leave to amend the plaint under Order 6, Rule 17 CPC by inserting a para (14-A) alleging that "the defendants are defaulter in the eye of law and thus liable to be evicted for not having paid any amount towards the rent of the suit premises even after the filing of the suit up to the month of April, 1983." The defendants filed a rejoinder contending the proposed amendment introduced a new cause of action and therefore should be rejected (paras 7–8).

The Court below refused the amendment by its order dated 23 July 1983, holding that the proposed amendment would cause injustice to the defendants; there was no finding that the amendment introduced a new cause of action (para 9). The present application is a revision challenging that refusal (para 1).

Legal Issues Presented

Whether the amendment of the plaint sought by the plaintiffs (to add a paragraph alleging default in rent up to April 1983) should have been allowed by the Court below.
Whether, on the facts and under the statutory scheme governing eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act/Ordinance, a landlord may introduce and rely on a ground for eviction arising subsequent to the institution of the suit by amending the plaint.

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs had validly commenced the eviction suit on grounds including sub-letting and non-payment of rent.
Registered notices were sent and served on defendant No. 1, who ignored them, necessitating the suit (para 4).
By amendment (Order 6, Rule 17 CPC) they sought to add that defendants remained defaulters up to April 1983 and thus were liable for eviction — i.e., they sought to bring to the Court's notice a subsequent event (default during pendency) that supported eviction (para 7–8).

Defendants' Arguments

Defendants asserted that defendant No. 2 was inducted into the premises on a monthly rental (stated as Rs. 100) and paid rent regularly and punctually since induction (para 13).
Defendant No.1 was asserted to have had no interest in the business or negotiations (para 13–16).
They denied sub-letting, denied a fixed-term tenancy, and contended that the relevant statutory regime had lost force so that certain remedies (e.g., moving the Controller) were unavailable (para 15).
In reply to the amendment application they contended the proposed amendment would add a new cause of action and could not be joined in the same suit; therefore the amendment should be rejected (para 8, Annexure 2).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ran Vijaya Shahi v. Bala Prasad Motani, AIR 1978 Pat 91	Cited for the principle that courts may take into account subsequent events relevant to the rights of the parties so as to shorten litigation and subserve justice (para 12).	The court relied on this authority as part of the established line of decisions permitting consideration of events occurring after institution of the suit when they do not change the character of the suit.
Smt. Abinash Kaur v. Dr. Avinash Nayyar, AIR 1975 Delhi 46 (FB)	Supports the principle that subsequent events may be taken into account by the Court in adjudicating parties' rights and that amendment may be permissible (para 12).	Used by the court to reinforce the settled proposition that courts can consider subsequent events and allow appropriate amendments to shorten litigation.
Tarakpada Kirti v. Ruplekha Chatterjee, AIR 1978 Cal 189	Cited among authorities establishing that amendments introducing subsequent facts which do not alter the character of the suit should be permitted (para 12).	The court treated this as part of established jurisprudence allowing amendments based on subsequent events so long as they do not change the suit's complexion.
Prem Lal v. Yadav Chand, AIR 1979 Raj 44	Another authority cited for the same principle: courts should consider subsequent events and allow amendments where appropriate (para 12).	Applied to support the proposition that the landlord may take into account subsequent events during pendency and amend the plaint accordingly.
Sachchidanand v. Heeranand, 1983 BBCJ (HC) 168 : AIR 1983 Pat 276	Affirms that amendments based on subsequent events (where those events provide a ground under the applicable Act) should be allowed to shorten litigation and preserve rights (para 14).	The court specifically cited this case to underline that amendments founded on subsequent events which are recognised grounds under the Act should be permitted in eviction suits.

Court's Reasoning and Analysis

The court undertook a step-wise analysis grounded on both procedural law (amendments under Order 6, Rule 17 CPC) and the statutory framework governing eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act/Ordinance.

First, the court reiterated the settled procedural test: an amendment introducing new facts will be allowed where those facts do not change the character of the suit; the key enquiry is whether the new assertion constitutes a new cause of action that alters the suit's entire complexion (para 10).

Second, the court examined the nature of suits under the Bihar Buildings statute. It observed that the Act prescribes specific grounds for eviction and that a suit under the Act is essentially for eviction — a landlord may invoke any ground available under the Act (para 11). The court emphasized that the existence of a statutory ground for eviction is a sine qua non to the court's jurisdiction to pass an eviction decree (para 13).

Third, the court analysed whether a ground for eviction arising after the suit was instituted could be introduced by amendment. It concluded that nothing bars a court from permitting the introduction of such a subsequent cause of action by amendment so long as:

The ground relied upon is one of the grounds for eviction recognised by the Act;
The introduction of the new ground does not change the essential character or complexion of the suit; and
The defendant is given a fair opportunity to meet the new case by amending the written statement and by leading evidence in support of the defence (para 13).

The court relied on a series of precedents to support the proposition that courts should take into account subsequent events to shorten litigation and do justice between the parties (para 12–14). The opinion noted that the lower court's sole reason for refusal was that the proposed amendment would cause injustice to the defendants, and that the lower court did not find that the amendment introduced a new cause of action (para 9).

Applying the above principles to the facts, the revisional court concluded that the lower court committed an apparent error of jurisdiction by refusing the amendment. The amendment was founded on a subsequent event that constituted a ground for eviction under the Act (alleged default in rent up to April 1983) and therefore could be permitted, subject to defendants' right to meet the new case (paras 14, 16).

The opinion also records that nobody appeared for the defendants (para 15), a fact noted in the course of the reasoning.

Holding and Implications

Holding: Application allowed; the impugned order refusing amendment is set aside and the lower court is directed to allow the amendment of the plaint as sought. The revisional court directed that the defendants be given liberty either to amend their written statement or to file an additional written statement. The lower court was further directed to dispose of the suit as expeditiously as possible, preferably within six months from receipt of this order. The court made no order as to costs and concluded: "Application allowed." (paras 16–16, final order).

Implications: The direct effect of this decision is that the plaintiffs are permitted to add the allegation of default up to April 1983 to their plaint, and the defendants are granted an opportunity to meet that amended case in pleadings and evidence. The suit will proceed at the trial court with the amended plaint. The opinion applies established principles permitting amendment to introduce subsequent events that constitute statutory grounds for eviction and does not purport to create a novel legal precedent beyond applying those principles to the facts before it.

Application allowed.

Show all summary ...

1. This is an application on behalf of the plaintiffs and is directed against the order dated 23rd July, 1983 refusing amendment of the plaint.

2. The question is whether amendment of the plaint sought for by the plaintiffs, on the facts and in the circumstances mentioned hereunder, should have been allowed by the Court below.

3. The plaintiffs-petitioners have filed a title suit (T.S No. 31 of 1982) in the Court of the First Munsif, Gaya, for eviction of the opposite patties under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance, 1982 (hereinafter referred to as ‘the Ordinance’). By virtue of Section 1, sub-section (3) of the Ordinance, Section 28 came into force immediately and the remaining provisions of the Ordinance were deemed to have come into force on 1st April, 1981 and to continue to remain in force thereafter. The plaintiffs prayed for the following reliefs:—

(a) A decree for eviction of the defendants from the suit premises described in Sch. A be passed in favour of the plaintiffs.

(b) A decree for Rs. 2000/- (Two thousand) be passed against the defendant No. 1 in favour of the plaintiffs towards arrears of rent.

(d) Cost of the suit.

(e) Any other relief or reliefs to which the plaintiffs be deemed entitled to.

Shorn of other details, the grounds for eviction of opposite parties were:—

(i) Sub-letting by defendant No. 1 (the tenant) of the premises to defendant No. 2. It is pertinent to give the relevant extract of this ground, as mentioned in para 2(h)— “……….. that the proprietor of ‘Krishi Kendra’ is the defendant No. 2 to whom the premises in suit was sublet by the defendant No. 1 for illegal gain and profit, hence to avoid future complications defendant No. 2 has been made party in the suit.”

(ii) Defendant No. 1 (the tenant) had not paid a single paisa towards rent and the relevant extract in relation to this ground from paragraph 2(i) is as follows:— “That since the defendant No. 1 had neither paid a single paisa towards rent ………”.

4. According to the plaintiffs-petitioners they sent registered notices through their lawyer which, according to them, were duly served. The petitioners' case is that even after service of the notice, defendant No. 1 (the tenant) did not pay any heed and just ignored the notice which necessitated the institution of the suit. In paragraph 2(k), in short, the petitioners' case is as follows:—

“That since the defendant No. 1 has not paid anything for use and occupation of the premises in suit nor has complied with the said notice and has also sublet the premises in suit without written consent by plaintiffs, he has rendered himself liable for eviction along with defendant No. 2.”

5. Thereafter the defendants appeared and filed their written statement. In short, the defence is that it was defendant No. 2 who was inducted in the suit premises on a monthly rental of Rs. 100/- only on 1-5-1982 and thereafter she started her business “Krishi Kendra” therein on 5-5-1982 and was paying the rental thereof since then up-to-date regularly and punctually.

(The year ‘82’ mentioned seems to be a mistype for ‘81’ as the suit itself was filed oil 2-3-1982).

The further defence was that defendant No. 1 was the brother of the husband of defendant No. 2 (i.e Devar of defendant No. 2) and had no interest in the said Business nor had participated in the negotiation for taking the house on rent. The further defence was that the plaintiffs were not in the habit of granting receipts for the payment of rents. The defence also was that as the Bihar Buildings (Lease, Rent and Eviction) Control Act, had lost its force, defendant No. 2 could not move the Controller. The tenancy for a fixed period in favour of defendant No. 1 was also denied.

6. Thus, the main defence was that defendant No. 2 was not a sub-lessee of defendant No. 1 and defendant No. 1 was not the tenant in the premises in question. The other main defence was that the rent was regularly paid and there was no default. The defence of defendant No. 2, who seems to be the main contesting defendant in the suit, was also that the notice to defendant No. 1 could not, in law terminate the tenancy of defendant No. 2. Thus, the defence is also to the effect that the tenancy was a month to month tenancy and not a tenancy for fixed term. These were the main pleas taken by the defendants in the suit.

7. On 13-5-1983, the petitioners filed an application under O. 6, R. 17 of the Civil P.C (hereinafter referred to as ‘the Code’) for amendment of the plaint and wanted that after para 14 a para 14-A be added and the amendment sought for was as follows:—

“That it is submitted that the defendants are defaulter in the eye of law and thus liable to be evicted for not having paid any amount towards the rent of the suit premises even after the filing of the suit up to the month of April, 1983.”

A copy of this amendment petition has been marked Annexure ‘1’ to the instant revisional application.

8. The defendants filed a rejoinder thereto and asserted that the proposed amendment was an addition of a new cause of action and could not be joined in one suit and in that view of the matter, the defendants contended that the amendment sought for by the plaintiffs needed to be rejected by the Court. A copy of the rejoinder filed by the defendants has been marked Annexure ‘2’ to the instant application.

9. The Court below, by the impugned order, has rejected the prayer for amendment of the plaint, as sought for by the plaintiffs, holding that the proposed amendment would cause injustice to the defendants. On this solitary ground the amendment has been refused. There is no finding that by the proposed amendment the plaintiffs were bringing in a new cause of action, though it was the solitary plea of the defendants in their rejoinder.

10. It is well settled that even if new facts are introduced but if those facts do not change the character of the suit, the amendment should be allowed. The test is whether new assertion, a new cause of action and foreign to the scope of the suit, changes the entire complexion of the suit. If it does, then the amendment cannot be allowed.

11. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, as amended from time to time, (hereinafter referred to as ‘the Act’), deals with eviction of tenants and prescribes specific grounds for eviction. The grounds prescribed need not be mentioned here. The nature of the suit brought under the Act essentially is one for eviction of the tenant and the landlord can put into service any of the grounds available to him for his eviction.

12. As already mentioned above, in the instant case the plaintiffs-petitioners have asked for eviction of the tenant (defendant No. 1) on two grounds, viz., on the ground of sub-letting by him to defendant No. 2 and on the ground that defendant No. 1 (the tenant) had not paid a single paisa towards rent till the filing of the suit. The question arises, if during the pendency of the suit another ground has become available to the landlord, can the landlord not has allowed to inform the Court of the subsequent event and press into service this additional ground for eviction of the tenant? It is well settled on well recognised principles that in order to shorten the litigation, to preserve the rights of both the parties and to subserve the ends of justice; the Court can and should take into consideration the subsequent events and adjudicate the rights of the parties and grant relief available to them. Reference may be made to the cases of (i) Ran Vijaya Shahi v. Bala Prasad Motani (AIR 1978 Pat 91). (ii) Smt. Abinash Kaur v. Dr. Avinash Nayyar, (AIR 1975 Delhi 46) (FB). (iii) Tarakpada Kirti v. Ruplekha Chatterjee (AIR 1978 Cal 189) and (iv) Prem Lal v. Yadav Chand, (AIR 1979 Raj 44).

13. The existence of one or more of the grounds mentioned in the Act for eviction of the tenant does not constitute a necessary part of the cause of action in a suit for eviction of the tenant. A cause of action in a suit under the Act for eviction of the tenant is certainly an accrual of a disability against the tenant pertaining to the grounds mentioned for eviction due to his conduct or laches, thus disentitling the tenant from the protection against his eviction. There is nothing which debars a Court from permitting, the introduction of a cause of action arising subsequent to the filing of the suit by way of amendment so long as the defendant has an opportunity of meeting the new case by amendment of his written statement and by leading evidence in support of his defence, if any. The Act forbids the Court from passing a decree or order of eviction which is dehors the Act. The existence of one or more of the grounds for eviction mentioned in the Act is a sine qua non to the exercise of jurisdiction by the Court.

14. Thus, for the foregoing reasons, a ground on which the suit for eviction was not initially instituted, but if that ground being a ground for eviction under the Act, and being available to the landlord during the suit, can be allowed to be taken by the landlord during the pendency of the suit and the landlord can legally ask the Court to allow amendment of the plaint taking into account the subsequent event after the institution of the suit and can legally press into service for the relief of eviction of the tenant on that ground (which is one of the grounds for eviction under the Act). As already stated above, such amendments on such grounds (of course being available under the Act) being based on subsequent event should be allowed in a suit for eviction against the tenant just to shorten the litigation, to preserve the rights of both the parties and to subserve the ends of justice. Reference may be made to the case of Sachchidanand v. Heeranand, 1983 BBCJ (HC) 168 : (AIR 1983 Pat 276).

15. Nobody has appeared for the defendants-opposite parties.

16. Thus, in my opinion, the Court below has committed an apparent error of jurisdiction in refusing to allow the amendment of the plaint. The application is allowed and the impugned order is, accordingly, set aside. The Court below is hereby directed to allow the amendment of the plaint, as sought for, with liberty to the defendants either to amend the written statement or to file additional written statement. The Court below is also directed to dispose of the suit as expeditiously as possible, preferably within six months from the date of the receipt of this order. However, in the circumstances, there will be no order as to costs.