Dr. Anant Kumar Karmakar vs Kanchanben Niranjan and Others

Sujata Manohar, J.—The petitioner is the owner of an Immovable property known as Asha Niketan, situate at 117-B Dadyseth Agiary Lane, Bombay 2. The 1st respondent was the monthly tenant in respect of room No. 3 on the ground floor of this property. She died on 4th January, 1978. On the date of her death respondent No. 2 who is her grand son was residing with her in the said premises.

Prior thereto on 22nd January, 1975 the petitioner filed in the Court of Small Causes, Bombay R.A.E. Suit No. 932 of 1975 for ejectment of respondent Nos. 1 and 2 from the suit property on the ground of arrears of rent and bona fide requirements of the petitioner. Prior to the filing of the suit a notice to quit dated 1st March, 1974 was served on respondent No. 1. Respondent Nos. 1 and 2 have filed their written statement in October, 1976 in which they have inter alia, pointed out that both the respondents are wrongly described.

It is the contention of the petitioner that after the filing of the suit the 3rd respondent-Omprakash Dinodia has been inducted in the said premises some time in 1980 or 1981 without the knowledge or consent of the petitioner. The petitioner applied for an amendment of the plaint by his application dated 19.4.1988 under which he sought six amendments. These amendments arc as follows :

(1) Omprakash Dinodia the respondent occupant to be shown as party defendant No. 3 in the title of the suit.

(2) To be added at the end of para No. 1 - The defendant No. 3 is joined in this proceedings being in occupation of the suit premises as unlawful occupant, in order to enable the Hon''ble Court to effectually decide all points and controvercies at a time in this suit.

(3) To be added after para 5 as para 5-A. - The defendant No. 2 has unlawfully sublet, transferred or parted with the possession of the suit premises in or about the year 1980-81 to the defendant No. 3 which is without the authority consent and permission of the plaintiff and also contrary to law.

(4) To be added after para 5-A as para 5-B. - The defendants have committed acts contrary to the provision of Clause A of Section 108 of Transfer of Property Act, 1982 in as much as the defendants have changed the user of the suit premises from residential to commercial or a business one which is again contrary to the provisions of the Bombay Rent Control Act.

(5) To be added after para 5-B as para 4-C. - The plaintiff says that his family consists of himself his wife, 5 sons and one daughter in all there are 8 members in his family. The present occupation use and enjoyment of the premises presently in his occupation which is situate on the 3rd floor of the suit building is not sufficient and that they all are feeling scarcity of accommodation. The eldest son of the plaintiff has become of marriageable age and for want of additional accommodation he is unable to push through in his marriage proposals. The plaintiff therefore requires the suit premises reasonably and bona fide for his own use and occupation in view of what is stated hereinabove.

(6) The name of the second defendant is to be amended in the title by showing him as Raj an Niranjan alias Rajendrakumar Devshankar Vyas.

The learned Judge of the Court of Small Causes by his order dated 28th April, 1989 allowed the amendment in terms of Clauses 5 and 6. He rejected the other amendments. Hence the present writ petition.

Under Clauses 1, 2 and 3 of the proposed amendments the petitioner desires to join Omprakash Dinodia as a party defendant to the suit on the ground that defendant No, 2 (respondent No. 2) has unlawfully sublet the suit premises in the year 1980-81 without the consent and permission of the plaintiff. By this proposed amendment he is sought to be joined as parly defendant and additional averments are sought to be made against him.

In order to effectively decide all points and controvarsies in the suit and to obtain the relief of possession, the petitioner who is the plaintiff has sought these amendments. The learned single Judge has observed that the decree passed would be binding on Omprakash Dinodia and hence it is not necessary to make him a party to the suit. This approach does not appear to be correct. In order to effectively decide all controversies which also affect defendant No. 3, and to avoid multiplicity of proceedings defendant No. 3 should have been joined as a proper party. The trial Judge was wrong in disallowing the amendment.

Under Clause 4 of the proposed amendment the petitioner is seeking to add a new ground for eviction which has arisen after the filing of the suit, namely, that the defendants have changed the user of the suit premises from residential to commercial. This change of user according to the plaintiffs, has taken place after the filing of the suit. This amendment has been disallowed on the ground that this incorporates a new cause of action. Once again, this approach is not correct. Under Order 6, Rule 1 7 of the Civil Procedure Code, the Court may at any stage of the proceedings allow either party to amend its pleadings for the purpose of determining the real question in controversy between the parties. The suit is for eviction under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. If a new ground for eviction available under the said Act arises after the filing of the suit, there is no reason why an amendment, to incorporate such a ground should not be allowed. Refusal of such an amendment would merely result in the landlord having to file another suit for the same relief on the new ground. There is no warrant for multiplying proceedings in this manner.

The Supreme Court in the case of Pasupuleti Venkateswarlu Vs. The Motor and General Traders, , has observed that where, during the pendency of a proceeding under Rent Control legislation by the landlord for permission to evict the tenants, a subsequent event takes place which has a material bearing on the landlord''s right to evict, such new development can be taken cognizance of.

A Full Bench of the Delhi High Court in the ease of Abnash Kaur Vs. Avinash Nayyar and Others, has held that if a new ground for recovery of possession under rent control legislation arises after the filing of the petition then that, can also be combined with the previously existing ground. The landlord can either file a new suit on this ground or he may apply for amending of the existing eviction petition and urge this ground also. It is said that in practice it would be undesirable for the landlord to pursue two different petitions for eviction on different grounds and that he should be allowed to amend his suit to cover the new ground also.

In the case of Zainab Bai and Others Vs. Navayug Chitrapat Co. Ltd., , in similar circumstances the Court said that where a suit, for ejectment of a tenant is filed on certain grounds subsequent addition of fresh grounds in the plaint docs not change the nature of the suit. Hence amendment to add such a new ground is permissible. Calcutta High Court has also taken a similar view in the case of Tara Properties Pvt. Ltd. Vs. Allied Resins and Chemicals Ltd., .

Mr. Mehta learned advocate of respondent No. 3 has pointed out that there is gross delay in amending the plaint as far as Clause 6 is concerned. No prejudice however, is caused to the respondent by this delay in fact respondent No. 2 has also filed his written statement as far back as 1976.

In the premises the petition is allowed. The impugned order dated 28th April, 1989, in so far as it disallows amendment in terms of Clauses 1 to 4 is set aside. The petitioners are permitted to amend the plaint as per schedule annexed to their application for amendment before the Trial Court. Such amendments to be carried out within 4 weeks from today. Newly added defendant No. 3 to file his written statement within 3 weeks of service. Liberty to respondent No. 2 to file supplemental written statement confined to the amendments within 6 weeks. Rule is made absolute accordingly. The petitioners to pay to respondent No. 2 costs of the petition.