Chotey Khan vs Vimal Kumar and Others

R.S. Kejriwal, J.—This revision has been directed against the order dated 4.1.1991, passed by learned Additional Munsif Magistrate No. 1 (North) Kota, by which he allowed the amendment application submitted by the plaintiff non-petitioners in Civil Suit No. 101/82.

The brief relevant facts of the case are that one Madan Lal predecessor of the non-petitioners filed a suit for eviction against the petitioner on the ground of his personal necessity for starting cloth-business in the disputed shop. Said Sh. Madan Lal died during the pendency of the suit. After his death the non-petitioners submitted an application for amendment of plaint seeking eviction of the petitioner on the ground of personal necessity of non-petitioners Vimal Kumar and Rakesh Kumar for running an electric-shop and also on the ground of nuisance. This application for amendment was allowed by the trial court vide its order dated 4.1.1991, which has been challenged by the defendant-petitioner in this revision.

I have heard Shri R.P. Garg, learned Counsel on behalf of the defendant petitioner and Shri N.K. Maloo for the non-petitioners.

It has been argued by Shri Garg that the suit was at the stage of final arguments, when the application for amendment was filed, he argued that allowing the amendment, will change the whole nature of the suit. Both the parties have to lead fresh evidence. He further argued that the ground of nuisance is a separate ground, which was not in the original plaint. He argued that at the stage of arguments, the non-petitioners cannot be allowed to change the nature of the suit. The lower court has committed serious illegality and irregularity in allowing the application for amendment and in case the said order is allowed to stand, it would cause irreparable injury to the petitioner. He argued that inspite of allowing the application, the lower court should have directed the non-petitioners to file fresh suit on the ground of their own necessity. In support of his arguments, he placed reliance on Jhangloo and Ors. v. Tularam and Anr. AIR 1986 M P 3 , Shri Muni Lal Vs. Smt. Niki Mansa Ram, Babu Lal v. Mukan Chand and Ors. 1977 W.L.N. 34 , Sadhu Sharan Singh and Another Vs. Deonath Saran Rai @ Bacha Babu and Others, Ram Singh Vs. Jethanand Wadhumal and Co., and Jagan Nath (Deceased) through Lrs. Vs. Chander Bhan and Others, .

On the other hand, Shri Maloo argued that amendment in the paint became necessary on account of subsequent events. He argued that it is a settled law that a Court should take note of subsequent events and allow amendment in the pleadings. In support of his arguments, he place reliance on the following judgments. (1) Anant Gadre Vs. Smt. Gomtibai and Others, , (2) Shantilal Thakordas and Ors. v. Chimanlal Maganlal Tolwala, (3) Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, , (4) Smt. Ramjeevni and Ors. v. Smt. Narati Bai 1989 2 R.L.R. 08 , (5) Suraj Prakash Bhasin Vs. Smt. Raj Rani Bhasin and Others, , (6) Jhangloo and Ors. v. Tularam and Anr. AIR 1986 M.P. 3.

It is an admitted fact that the plaintiff Madan Lal died during the pendency of the suit. When the plaintiff died, the suit was at the stage of arguments as argued by the counsel for the petitioner. The question is as to whether in these circumstances, the trial court should have allowed amendment of the plaint on the ground of subsequent events. The authorities cited by Shri Garg are not to the point where amendment can be allowed or not on account of subsequent events and as such are not applicable to the facts of the present case. In the following cases, it has been held that the Court should take note of subsequent events and allow amendment in pleadings.

AIR 1986 M.P. 3 Smt. Ram Murti Devi and Others Vs. Ralla Ram Tulsi Ram and Another, Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and Others, Pasupuleti Venkateswarlu Vs. The Motor and General Traders,

In Pasupuleti''s case (supra), the facts were that the plaintiff filed a suit for eviction against the defendant on the ground of personal necessity for starting a business of automobile spares. The Rent Controller dismissed the petition. The landlord filed an appeal, which was also dismissed. The landlord filed a revision before the High Court, which allowed the same and remanded the case to the Appellate Authority. The Appellate Authority further remanded the case to the trial court for fresh disposal in accordance with some directions after allowing parties to lead evidence. Against this order of the Appellate Authority, the landlord filed a revision before the High Court on the ground that the wholesale remittal was unjustified. During the pendency of the revision, the landlord obtained possession of another shop and on that ground the High Court not only dismissed the revision application but also dismissed the suit of the landlord with the following observation:

If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent events of his having come into possession of a portion of the building.

Against this order of the High Court, the landlord went in appeal before the Hon''ble Supreme Court. The Hon''ble Supreme Court allowed the appeal and held as under:

We think it unfair to drive parties to new litigation of unknow duration but direct in the special circumstances of the case (which are peculiar) that (a) the revision before the High Court shall dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking eviction on which there is already an adverse finding by the High Court; (c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permisible ground; and (d) the parties be given fair and full opportunity to file additional pleading and lead evidence thereon.

In Shikharchand''s case (supra) the Apex Court held as under:

(B) Ordinarily, a suit is tries in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become in appropriate; or (2) where it is necessary to take notice of the changes circumstances in order to shorten the litigation or (3) to do complete justice between the parties.

In the present case, the plaintiff Madanlal died during the penency of the suit and as such it was obligatory to the trial court to take note of the subsequent event and to allow the amendment with a view to do complete justice between the parties in this very suit.

In Pasupleti''s case (supra) the Apex Court was of the view that it was undesirable to drive the parties to a new litigation of unknown duration. The Apex Court, under these circumstances, allowed the landlord to amend the petition. Under these circumstances, in my view to say that the non-petitioners be asked to file a fresh suit on the ground of their personal necessity would mean to drive them to a new litigation of unknown duration. The necessity of the legal heirs of the plaintiff can be decided in the present suit after giving an opportunity to the defendant to file amended written statement.

In view of this, in my opinion, the trial court has not committed any illegality or irregularity in allowing the amendment application.

I do not find any force in the revision application and the same is dismissed. Any how, it is observed that the trial court will give an opportunity to the defendant to file amended written statement and will frame necessary issues. The counsel for the plaintiff non-petitioners state at the bar that he will complete his evidence within a period of six months from the date fixed for his evidence. In view of this, I direct the trial court to decide the suit expeditiously as far as possible within a period of two years.