Balram Medical Hall vs Rajendra Prasad and Others

Ramesh Kr. Datta, J.—Heard Learned Counsel for the parties. The petitioner has approached this Court against the order dated 17.1.2006 passed by Munsif-I, Begusarai in Title Eviction Case No. 24 of 1987 by which the court has allowed the prayer for amendment made on behalf of plaintiff-opposite parties for adding the relief with regard to declaration of title in the Eviction Suit after impleading the person claiming title over the property and also for adding the relief for setting aside the sale deed of that person.

The facts of this case, relevant to the determination of the present matter are that the plaintiff-opposite party filed Eviction Suit No. 24/87 for eviction of the defendant-petitioner from the suit shop on the ground of personal necessity and also default in payment of rent and for reahzation of arrears of rent. The defendant in his written statement raised the plea that the suit shop belonged to one Raj Kishore Prasad who had inducted the defendant as tenant and subsequently said Raj Kishore Prasad had sold the suit shop to Anil Kumar Singh who is now landlord of the defendant and not the plaintiffs. On 18.11.1998 said Anil Kumar Singh filed a petition under Order I Rule 10 of the CPC for impleading him as a defendant on the basis of having acquired title over the said suit shop by virtue of a registered sale deed dated 6.8.1988 and further that the present defendant-petitioner had also vacated the suit shop and handed over possession to him. The prayer was opposed by the plaintiff-opposite parties and the learned trial Court by order dated 15.1.1999 rejected the said petition and refused to add said Anil Kumar Singh as intervener-defendant in the suit. The order was affirmed up to the High Court.

Subsequently, on 8.9.2003 the plaintiff-opposite party filed a petition for amendment of the plaint praying inter alia for converting the eviction suit into a regular Title Suit by impleading said Anil Kumar Singh and his vendor, Raj Kishore Prasad, as defendants in the suit and also for adding the relief for declaration of title of the plaintiffs over the suit shop after setting aside the sale deed dated 6.8.1988 executed in favour of Anil Kumar Singh. The defendant-petitioner composed the amendment petition on various grounds. The Court below however, allowed the said amendment petition by the impugned order dated 17.1.2006.

Learned Counsel for the petitioner submits that the suit was nearing its completion since almost all the plaintiffs'' witnesses had been examined and at this belated stage it was not proper for the court below to have allowed the said amendment changing the whole nature of the case. It is further submitted by the Learned Counsel that the issue regarding addition of said Anil Kumar Singh as a party-defendant had already been rejected by order dated 15.1.1999 by the court below as also the prayer to decide the issue of title and the said order having acquired finality the present order impleading him as a party and allowing the suit to proceed as Title Suit is barred by principles of res judicata.

It is further submitted by the Learned Counsel for the petitioner that plaintiffs had knowledge of sale deed dated 6.8.1988 at least when the petition dated 18.11.1998 of said Anil Kumar Singh was served upon him and more than three years had elapsed since the said date of knowledge and as such the challenge to the sale deed is barred by limitation. In support of the said stand, Learned Counsel for the petitioner relies upon a decision of the Supreme Court in the case of Radhika Devi Vs. Bajrangi Singh and others, . In the said case a gift deed was executed and registered as early as on 28.7.1978 and even after filing of the written statement no steps were taken for three years by filing an application for amendment of the plaint. In the said circumstances, it was held by the Apex Court that the accrued right in favour of the respondents would be defeated by permitting amendment of the plaint.

It is next submitted by the Learned Counsel for the petitioner that the admission in the amendment petition that Anil Kumar Singh is in actual physical possession and recovery of possession having been sought from him can have the only consequence that the suit for eviction against the present defendant-petitioner must fail and in the said circumstances, the Court below ought to have dismissed the eviction suit leaving the plaintiff-opposite parties to assert their right in a fresh suit.

Learned Counsel for the petitioner also submits that in eviction suit the question of title is irrelevant as has been laid down in a catena of decisions of the Supreme Court and for the said reasons the court below ought not to have converted the eviction suit into a Title Suit by allowing the amendments that too by impleading a third party who was stranger to the suit in the said matter. In support of the said proposition Learned Counsel relies upon a decision of the Supreme Court in the case of Rajendra Tiwary Vs. Basudeo Prasad and Another, , in para-7 of which it has been laid down as follows.--

"it is evident that while dealing with the suit of the plaintiffs for eviction of the defendant from the suit premises under clauses (c) and (d) of sub-section (1) of Section 11 of the Act, Courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of ''landlord and tenant'' should exist. The scope of the enquiry before the Courts was limited to the question: as to whether the grounds for eviction of the defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the definition of the terms "landlord" and "tenant" in clauses (f) and (h) respectively of Section 2 of the Act."

Learned Counsel for the petitioner also relies upon a decision of this Court in the case of Dr. Gopal Sharan Singh vs. The State of Bihar & Ors.: 1997 BBCJ 539 wherein it has been laid down that the suit for eviction cannot be converted into title suit at the instance of third party.

Learned Counsel next relies upon a Full Bench decision of this Court in the case of Sadhu Sharan Singh and Another vs. Deonath Saran Rai alias Bacha Babu and Others: AIR 1943 Patna 206 for the proposition that it is neither permissible in law nor desirable in equity to allow amendment of plaint which would change cause of action for the suit and would mean a retrial of the whole case on a new footing at a late stage.

Learned Counsel further submits that the amendment which introduces new cause of action cannot be permitted. In support of the same he cites a decision of a learned Single Bench of this Court In the case of Kameshwarindra Guru vs. Chattu Prasad Mahto: 1984 BLJR 171, in which the said proposition has been laid down.

Learned Counsel for the petitioner lastly submitted that if the plaintiffs'' case was that Anil Kumar Singh has no semblance of title and he has been put in possession by the petitioner to defeat the decree of eviction then Anil Kumar Singh could have been impleaded as party and decree for eviction could have been passed. But here the case sought to be brought for amendment is not that Anil Kumar Singh had no title rather that he has sale deed which is sought to be set aside. It is submitted that both the reliefs cannot go together and thus the amendment ought not to have been allowed.

Learned Counsel for the opposite parties, on the other hand, strongly opposes the stand of the petitioner and submits that the suit for eviction can be converted into a Title Suit even at a late stage if title is claimed by the tenant. In support of the said proposition he relies upon a decision of this Court in the case of Harihar Prasad Vs. Biresh Manjhi, . In the said case eviction suit was filed on the ground of personal necessity but the defendant came up with a plea that he had purchased the suit property long back in the year 1931 and also produced the sale deed to that effect and the title of the plaintiffs was seriously challenged. Then at a late stage while their evidence was going on, the plaintiffs filed the amendment petition by which they sought to change the eviction suit into a regular title suit for declaration of title and a negative declaration regarding the sale deed of the defendant to be void ab initio. The said prayer was rejected by the court below on the ground that it would completely change the nature of the suit and further since the title of the plaintiffs was challenged long back by filing written statement and the plaintiffs did not take steps earlier then the amendment sought at a belated stage cannot be allowed. this Court, however, even though there was negligence and laches on the part of the plaintiffs in not coming up soon after filing of the written statement held that such delay alone cannot be a ground for rejecting the prayer for amendment. It was held that it was a fit case in which prayer ought to have been allowed by the court below and for the delay and harassment caused to the defendant a cost may be awarded for the purpose of compensation.

Learned Counsel also relies upon a decision of this Court dated 16.8.2002 passed in C.R. No. 364/2002 (Pramod Kumar Agrawal alias Pramod Narayan Agrawal & Anr. vs. Bijay Kumar Mandal) in which it has been held as follows:--

"In a suit for eviction the question of title cannot be gone into in full fledged manner. The Court has only to determine the relationship of the landlord and tenant. In case question of title is found to be involved during the proceeding the Court may itself convert the suit into a title suit if prayed by the plaintiff or dispose of the suit by directing the plaintiff to get the question determined in a title suit."

In this regard Learned Counsel also cites another decision of this Court in the case of Maheshwar Prasad Sharma vs. Shobha Devi: 1999(2) PLJR 148, in para-5 of which it has been observed as follows:--

"However, it is well settled that in a suit for eviction the Court is not required to decide the title of the plaintiff in a full-fledged manner. The Court is rather required to see whether there is relationship of landlord and tenant between the parties or not. It is for that purpose that the Court is required to see whether the plaintiff is the owner of the premises, whether the defendant is the tenant and whether he is liable to pay rent to the plaintiff. The defendant may admit both that he is tenant and that he is liable to pay rent to the plaintiff, that is, admit the relationship of landlord and tenant and yet contend that no ground for eviction is made out. He may also while admitting his status as tenant, challenge the ownership of the plaintiff and contend that he is tenant of some other person, that is, deny the relationship of landlord and tenant. He may also claim independent title in himself. Where complicated question of title arises, the Court may ask the plaintiff to seek relief in a properly constituted suit or may convert the suit into a regular title suit, decide the question as to title on payment of proper court fee and, in an appropriate case, grant the plaintiff the decree of eviction on the basis of title under Order 7 rule 7 of the Civil Procedure Code."

It is stated by the Learned Counsel for the opposite parties that as a matter of fact, there was a partition in the family in the year 1977 and in the said partition property in dispute was allotted to the share of the present plaintiffs-opposite parties and Raj Kishore Prasad, the vendor of said Anil Kumar Singh, was allotted other properties but he did not retain any property and whatever was allotted to him he had already sold much earlier. In the said circumstances, it is submitted that said Anil Kumar Singh has been wrongly set up by the petitioner in a collusive manner on the basis of an alleged sale deed executed by said co-sharer of the opposite parties and moreover, during the pendency of the suit he has been put in possession over the suit premises. This act of the defendant-petitioner amounts to a subsequent development by which the plaintiffs-opposite parties have been dispossessed. In the said circumstances, the only remedy of the plaintiffs is to add said person as party and convert the suit into a Title Suit because even if the plaintiffs-opposite parties succeed in the suit and a decree is passed in their favour the same may not be executable. It is submitted that on the basis of the provisions of Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, (in short, the BBC Act) a decree of eviction cannot be executed against any person who has an independent title to such a premises. Since independent title is being claimed by Anil Kumar Singh on the basis of a sale deed and he has now been put in possession, the entire efforts of the plaintiffs-opposite parties will come to a naught unless the said amendment is allowed. For the said reasons it is submitted that the court below has rightly allowed the amendment.

On the question of limitation raised by the petitioner, Learned Counsel for the opposite parties submits that so far that part of the amendment is concerned by which it is prayed to declare the sale deed dated 6.8.1988 as forged, fabricated and fraudulent document as also the prayer for setting aside the sale deed it is not at all required to be pressed in the said suit since the same has been executed by a person who had no title at all to the land in question. In the said circumstances, there would not be any question for the amendment being barred by limitation. It is thus, submitted that to that extent the amendment may be deleted.

It is further submitted by the Learned Counsel that the opposite parties were dispossessed on 26.6.2003 and immediately thereafter on 8.9.2003 they filed the amendment petition with utmost expedition. Therefore, the Court below has rightly allowed the amendment. In this regard, Learned Counsel relies upon a decision of the Supreme Court in the case of Om Prakash Gupta Vs. Ranbir B. Goyal, , in para-12 of which the Apex Court has held as follows:--

"Such subsequent event may be one purely of law or founded on facts In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, , this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao vs Sita Ram Kesho and Ors. (1898)25 Ind App 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted."

Learned Counsel for the opposite parties also submits that where substantial justice is done by the order of the court below then this Court in exercise of its revisional jurisdiction does not interfere with the order even if there may be some defects in the order of the court below. In support of the said proposition, leaned counsel cites a decision of this Court in the case of Chairman and Another Vs. Mahadeo Prasad and Others, of which it has been held by a learned Single Bench of this Court (S.B. Sinha, J. as his Lordship then was) as follows:--

"It is now well known that even if there be some jurisdictional error in an order passed by the inferior court, the High Court in exercise of its revisional jurisdiction may refuse to interfere with the same if substantial justice has been done between the parties to the suit. Reference in this connection may be made to Major S.S. Khanna vs. F.J. Dillon, reported in 1964 S.C. 497 and Brij Gopal Mathur and Anr. vs. Kishan Gopal Mathur, reported in 1973 S.C. 1096."

Further reliance is placed by the opposite parties on a decision of the Supreme Court in the case of Prem Bakshi and Others Vs. Dharam Dev and Others, in which it has been held that an application for amendment of plaint, by which it was sought to bring to notice of the Court subsequent facts, having been allowed, the said order allowing the amendment cannot be said to have finally disposed of the case and would not fall within Clause (a) of Section 115(1). It was further held that such order would not even remotely cause failure of justice or irreparable injury to any party, as the defendant would get opportunity to file written statement and he would be able to raise all his defence and have the chance to take up points decided against him before the appellate court. Thus, such an order cannot be interfered with by the High Court.

Learned Counsel also relies upon a decision of the Supreme Court in the case of Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, , in support of his proposition that merely on the ground of substantial delay in filing the amendment application, the same should not be disallowed. The dominant purpose of allowing the amendment is to minimise the litigation. It was further held that an application for amendment should not be disallowed merely on the ground that the same is barred by limitation.

On the issue of limitation Learned Counsel seeks to rely upon a decision of the Supreme Court in the case of State of Maharashtra Vs. Pravin Jethalal Kamdar (Dead) by Lrs., in which it has been held that a suit to recover possession simpliciter can be filed and there is no need to seek declaration about invalidity of the documents even if relief of declaration is sought along with recovery of possession and such suit is governed by Article 65 and not Article 58.

It is further argued on behalf of the plaintiff-opposite parties that the petitioner having handed over the possession of the property, collusively and unauthorisedly, to Anil Kumar Singh, he has no locus standi to file the present revision application. It is submitted that the said Anil Kumar Singh has not challenged the order impleading him as party and allowing the amendment nor his alleged vendor. Raj Kishore Prasad, has challenged the same; rather both of them had filed written statements and are contesting the suit. It is further submitted by the Learned Counsel that in view of the fresh developments during the pendency of the suit, the fresh issues have arisen and it is most appropriate to consider all the matters including the issue regarding the tenancy of the petitioner along with the issues of title claimed by Anil Kumar Singh and his vendor. In the said circumstances, it is submitted that the court below has rightly allowed the amendment.

In his reply Learned Counsel for the petitioner has sought to rely upon a decision of the Supreme Court in the case of Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, of which it has been held as follows:--

"As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to sub serve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court."

Learned Counsel has sought to insist upon the first part of the said observations wherein the Apex Court has held that the primary duty of the Court is to decide whether such an amendment is necessary to decide the real dispute between the parties and, if it is, the amendment should be allowed and, if not, the same ought to be refused.

On a consideration of the aforesaid observations it does not appear that the same goes in favour of the petitioner rather the Court has clearly held that the principles to be applied are essentially based on rules of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.

Learned Counsel has also sought to rely upon the judgment of the Supreme Court in the case of Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and Others, , in which it was held that the defendants having set up a rival title on the basis of sale deed dated 4.10.1985, the plaintiff was bound to amend his pleadings if he wanted to challenge the said sale deed to be ineffective and incapable of creating a valid title in favour of the defendant and cannot be permitted to do so after lapse of nearly 15 years by filing an amendment application and it would amount to permitting the plaintiffs to introduce a time barred claim.

Learned Counsel for the petitioner also sought to place emphasis on the words ''between the parties'' used in Order 6 rule 17 CPC and sought to submit that the amendment can be allowed only for the resolution of all disputes and issues between the parties and not for introducing new party and setting controversies against such party in the suit.

On a consideration of the rival submissions at first blush the contention made on behalf of the petitioner appear to be attractive. However, on a deeper consideration there is not much force in the said submissions. So far as the issue of delay is concerned, it has always been the law, as also decided by the Apex Court in Pankaja''s case (supra) and by this Court in Harihar Prasad''s case (cited above) that it is open to the Court to amend the pleadings even after a long delay and mere delay does not bar the exercise of power to amend under Order 6 rule 17 CPC if the same is necessary for disposing of and deciding all questions in controversy between the parties which would further the cause of justice.

The issue of res judicata raised by the petitioner also does not appear to carry much substance since the rejection of the prayer of Anil Kumar Singh to be added as an intervener-defendant was made on the ground that in an eviction suit no party claiming title can be permitted to intervene. The same consideration, however, does not apply where the plaintiffs themselves, in view of the subsequent developments after tiling of the suit, seek to implead as a party a person who is not only claiming title on the basis of a sale deed allegedly executed by some one who was earlier a co-sharer in the joint family properties of the plaintiffs and, not only that, who was put into possession by the tenant against whom the eviction suit has been filed. In the said circumstances, if the Court accepts the amendment proposed for converting the suit from eviction suit to title suit then the addition of such a party should be permitted as a matter of course and the fact that he was not permitted to be impleaded in eviction suit can be of no relevance for the purpose of his addition as a party in the converted title suit. Hence, there can be no application of the principle of res judicata in such situation.

In this regard, the reliance by the Learned Counsel for the petitioner on the provisions of Order 6 rule 17 CPC are of no avail. It is evident that the Courts can add a party in a suit and the same is done in exercise of powers under Order 1 rule 10 CPC and the said power can also be exercised at any time. Once the said power has been exercised as in the present matter without specifically referring to Order 1 rule 10, then the provisions of Order 6 rule 17 CPC have to be read so as to allow decision on all matters in controversy between the said added party and earlier parties, and not only between the original parties to the suit.

As a matter of fact, the entire arguments of Learned Counsel for the petitioner appear to be based upon a presupposition that the eviction suit can in no circumstances be converted into a title suit. The same does not appear to be the legal position as is evident from what was stated by this Court in Maheshwar Prasad Sharma''s case (supra) and in Rajesh Kumar Agrawal''s case (supra). In Gopal Sharan Singh''s case (supra) relied upon by the petitioner, this Court had merely held that the eviction suit cannot be converted into title suit at the instance of third party but not that it cannot be done at the instance of the plaintiff. That being the settled legal position no fault can be found in the decision of the Court permitting the eviction suit to be converted into a title suit so that all matters in controversy between all concerned parties may be settled once and for all. In fact, the eviction suit was filed 20 years back in the year 1987 and during the pendency of the same it is alleged that the tenant had handed over possession of the premises to his alleged landlord, who claims to be a purchaser from one of the co-sharers of the plaintiffs-opposite parties when the family was joint, after partition of the joint family properties.

Further, in view of the provisions of Section 12 of the B.B.C. Act, even if the eviction suit was decreed, the plaintiffs may not have succeeded in executing the same against the alleged landlord who claims independent title and has been put into possession by the petitioner during the pendency of the eviction suit.

The proposition that an amendment which changes the cause of action or introduces new cause of action is not permissible, does not apply to the facts of the present case where the subsequent event has occurred at the instance of defendant-petitioner who has sought to defeat the plaintiffs'' claim by handing over possession to an alleged landlord; and, therefore, it is the Apex Court''s decision in Om Prakash Gupta''s case (supra) which would apply, and the amendment must be permitted.

In the aforesaid circumstances, it has to be held that the impugned order in question furthers the cause of substantial justice and in that view of the matter, the cases cited on behalf of the opposite parties require that this Court does not interfere in its revisional jurisdiction with such exercise of power even though there may be some errors in the said order.

So far as the plea of the petitioner regarding the bar of limitation so far as the challenge to the sale deed dated 6.8.1988 being forged, fabricated and fraudulent document and also for setting it aside, is concerned, Learned Counsel for the plaintiff-opposite parties has already conceded that the same may be deleted. this Court accordingly directs that the amendment shall stand deleted to that extent.

In the light of the discussions made above, this Court does not find any merit in the revision application and it is accordingly dismissed subject to the aforesaid observations and directions. It is however, made clear that the defendants would be at liberty to raise all pleas including the plea of limitation with respect to any of the amendments by filing written statement or additional written statement.