Bharat Raj Singh vs Dileep Santhalia & Ors

Respondent Nos. 1 and 2 have not chosen to appear in spite of valid service of notice upon them which is recorded in order dated 21.11.2017.

Anxiety of the petitioner who is defendant in Eviction Suit No. 20 of 2009 is, that by virtue of the impugned order dated 30.04.2016 the plaintiff

no. 3 - a subsequent purchaser by filing an application under Order VI Rule 17 C.P.C would transform the suit as the one for his own personal

necessity.

Eviction Suit No. 20 of 2009 was instituted by Dileep Santhalia and his wife for ejection of the defendant from the suit schedule premises on the

ground of personal necessity of plaintiff no.1. During pendency of the suit an application under Order I Rule 10(2) C.P.C was filed by Surya

Commodities Pvt. Ltd. for its transposition as plaintiff in the eviction suit. Against the rejection of this application by an order dated 10.03.2011,

Surya Commodities Pvt. Ltd. came to this Court in W.P.(C) No. 2243 of 2011. The writ petition stood allowed on 08.05.2015 holding that a

valid title has accrued to Surya Commodities Pvt. Ltd. and therefore its addition in the pending proceeding is necessary. Consequently, Surya

Commodities Pvt. Ltd. was transposed as plaintiff no.3 in Eviction Suit No. 20 of 2009. It filed an application under Order VI Rule 17 C.P.C for

amendment in the plaint. One of the amendments sought in the plaint is deletion of paragraph no.12 in which the original plaintiffs have pleaded

personal necessity for plaintiff no.1, by substituting personal requirement for Surya Commodities Pvt. Ltd. plaintiff no.3. It reads :

That in between para nos. 11 and 12 of the plaint, a new para 11(a) be inserted in the following manner "" 11(a) that plaintiff nos.

1 and 2 for legal necessity and on receipt of valuable consideration from plaintiff no.3 by virtue of registered deed of sale being no.

5264 dated 28.04.2010 transferred their part of property in Holding Nos. 212 and 213 of old Ward No. 14, new 12 of Hazaribag

Municipality with all its assets and liability, which they acquired vide deed no. 11212 dated 29.09.2008, in favour of plaintiff no. 3

and put him in possession thereof except suit house (Schedule ""A"") which was in possession of defendant and accordingly plaintiff

no.3 stepped to the shoes of plaintiff nos. 1 and 2.

That para 12 of the plaint be deleted and in its place; new para 12 be inserted in the following manner :"" 12 newThat plaintiff no.3

is registered company registered under the Companies Act 1956 having its registered office at 14/2 Old China Bazar Street; 2nd

floor Room No. 148, Kolkata700001, W.B. who intend to extend his branch office with house accommodation at Hazaribag town

for which a vast areas is required, hence plaintiff no.3 is requiring Schedule ""A"" premises reasonably and in good faith for its personal

use and occupation.

Mr. Sheo Kumar Singh, the learned counsel for the petitioner contends that the amendment in the plaint would, in essence, amount to

withdrawal of the plea of personal necessity of plaintiff no.1 and while so, the suit was liable to be dismissed on admission.

Seriously opposing challenge to the impugned order dated 30.04.2016, Mr. V. Shivnath, the learned Senior counsel for the petitioner submits

that to avoid inconsistency in the pleadings and the document, amendment in paragraph no.11 of the plaint is necessary. On amendment in

paragraph no.12 of the plaint, contention raised on behalf of the respondent no.3 is that once respondent no.3 has been transposed as plaintiff in

the eviction suit by virtue of a sale deed executed in its favour, issue in the suit now would be confined to eviction of the defendant from the suit

premises for personal necessity of plaintiff no.3.

Order VI Rule 17 C.P.C confers power upon the Court to permit amendment in the pleadings, however, such power is restricted under proviso

to the said Rule. It provides that amendment in the pleadings shall not be allowed once trial in the suit has commenced. However, by now it is

wellsettled that amendment in the pleadings can be permitted even at the stage of final hearing, subject to the conditions that amendment in the

pleadings does not cause prejudice to the other party and it was not on account of default on the part of the party seeking amendment in the

pleadings that the matter could not be pleaded at the time of institution of the suit.

The learned Senior counsel for the respondent no.3 has contended that by permitting the amendment in the plaint the trial Judge has exercised

the jurisdiction vested in it and moreover it shall not change the nature of the suit.

Amendment sought in paragraph no.11 of the plaint is to the effect that the plaintiff nos. 1 and 2 have sold the suit premises for their legal

necessity and on receipt of valuable consideration from plaintiff no.3. The sale deed dated 28.04.2010 has not been brought on record. There is

no reference in the impugned order dated 30.04.2016 on averment in the said sale deed on legal necessity of plaintiff nos. 1 and 2. For that reason

alone the impugned order dated 30.04.2016 renders unsustainable. On change in the claim for personal necessity of plaintiff no.3 in place of

plaintiff no.1, suffice would be to indicate that a suit which was instituted for personal necessity of plaintiff no.1, on transposition of plaintiff no.3 in

the suit, cannot become a suit for the personal necessity of plaintiff no.3. Order dated 08.05.2015 by which application under Order I Rule 10(2)

C.P.C for transposition of Surya Commodities Pvt. Ltd.plaintiff no.3 was allowed would indicate that its transposition was only for the reason that

a valid title has accrued in its favour. It is not a case pleaded by the plaintiff no. 3 that it sought its transposition in the pending suit for claiming its

own personal necessity for ejection of the defendant from the suit schedule property. In fact, sale of the suit property is a pointer to relinquishing

the claim of personal necessity for the plaintiff no.1. The nature of the suit by virtue of amendment in paragraph no.12 of the plaint would certainly

change. By an amendment, the plaintiff cannot be permitted to change the cause of action and incorporate an entirely new cause of action.

In view of the aforesaid facts, I find serious infirmity in the impugned order dated 30.04.2016 and accordingly, it is setaside.

The writ petition stands allowed.