Jawahar Lal vs Dewan Chand

Ranjit Singh, J.—The order impugned in the present revision petition is the one whereby prayer for amendment of the pleadings made by

respondents under Order 6 Rule 17 CPC stands allowed.

Respondent Dewan Chand and Anr. filed a petition u/s 13(3)(ii) of the East Punjab Urban Rent Restriction Act for eviction of tenant from their

shop on the ground of bona fide necessity. The case set up by the petitioner was that husband and wife needed this shop for running their own

business. On the basis of the pleadings, one of the issue that was framed was:

whether the petitioners require the demised shop for their use and occupation for business? OPA

This petition was instituted on 3.2.2000. In January, 2007 the present application under Order 6 Rule 17 CPC was filed seeking amendment to the

effect that youngest son of the petitioners, namely, Jaspal was an employee of M/s Khahna Book Depot and has started his business as a book

seller and stationery after taking a shop on rent from one Harjinder Singh and joined Narinder Kumar, his elder brother as his assistant, Narinder

Kumar wanted to set up his own business in the shop in question. He is of a marriageable age and thus the petitioner would require the shop in

dispute from abovesaid Jaspal Singh for his separate business in the shop.

Terming this amendment to be necessary for proper adjudication of the case, the prayer for amendment was pressed. The trial Court after

obtaining reply from the petitioner allowed the amendment basically on the ground that proposed amendment appears to be necessary for decision

of this suit and to avoid multiplicity of the litigation. The said order is now impugned through the present revision petition.

Mr. Arun Palli, learned Senior Counsel appearing for the petitioner, by referring to Order 6 Rule 17 CPC would urge that any amendment

which is just and necessary for the purpose of determining real question in controversy can only be allowed and any amendment, which results in

changing the entire cause would be beyond the purview of Order 6 Rule 17 Civil Procedure Code, 1908. According to the counsel, the earlier

case set up by the respondents has entirely been discarded and altogether a new case is now set up on account of the need of their son, which

amount to substituting the earlier cause and as such would not be permissible to be introduced by way of amendment. When specifically asked, the

learned Counsel very fairly answered that the respondents may be entitled to file a separate petition seeking eviction on this ground, but still

maintained that amendment as allowed was beyond the purview of Order 6 Rule 17 CPC.

Mr. R.K. Battas representing the respondents, however, would challenge the very maintainability of the present revision petition on the ground

that order allowing the amendment would not occasion failure of justice or cause irreparable injury. In support the counsel would refer to

observations of the Hon''ble Supreme Court made in the case of Prem Bakshi and Others Vs. Dharam Dev and Others, , where it is held that it is

almost inconceivable that an order permitting amendment of pleadings would cause justice or irreparable injury to any party. Hon''ble Supreme

Court, in this case, has further held that refusal to allow such amendment may on the other hand in certain circumstances result in miscarriage of

Justice. Mr. Battas would also refer to the case of Sampath Kumar Vs. Ayyakannu and Another, , where it is observed that when the cause of

action arises during the pendency of a suit and only nature of relief sought to be changed while basic structure of the suit remaining unchanged, the

amendment can be allowed in order to avoid multiplicity of a suit. This observation is made to the view taken by the court below that it was open

for the plaintiff to file a fresh, suit seeking the relief sought. In this background, it is held that in order to avoid multiplicity of the suit, amendment

should be allowed. Reference is also made to the case of Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, . The view, taken in

this case is that where cause of action arose during the pendency of the suit, amendment of the pleadings be allowed if the nature of relief is

changed, but did not change the basic structure of the suit. It is further held that if it is permissible for the appellants to file an independent suit, why

the same relief which could be prayed for in a new suit be not permitted to be incorporated in the pending suit. In another case of Madho Singh v.

Smt. Krishna Devi 1984(2) R.C.R.(Rent) 41 : 1981(2) R.L.R. 398 it is held that bona fide necessity u/s 13(3)(a)(i) would include the need of

dependents of landlord/landlady and that the dependent may not be necessarily a relation of he landlord/landlady. It is, thus, urged that the need of

son would be the need of the petitioner and the amendment would not lead to any change of cause or substitute of a cause. Reference is also made

to the case of Sukdev Chand Vs. Vishnu Dutt, , where it is observed that application for amendment of eviction on the ground of personal

necessity for and on behalf of the son if prayed and is rejected, then it would amount to forcing landlord to resort to another litigation, which would

not be in the interest of either landlord or the tenant. The order allowing the amendment was upheld.

Mr. Palli, on the other hand has referred to the case of Mani Raj Vs. Firm Radha Krishan Siri Niwas and Others, . This court has held in this

case that all amendments of pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the

proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. It is

further viewed that the proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs and that no

amendment should be allowed which amounts to or results in defeating a legal right accruing to the opposite party on account of lapse of time.

Reliance is also placed on the case of Vineet Kumar Vs. Mangal Sain Wadhera, , where it is observed that normally amendment in a plaint is not

allowed if it changes the cause of action. It is further observed that, however, where the amendment does not constitute an addition of a new cause

of action or raise a new case, but amounts to no more than editing to the facts already on record the amendment would be allowed even after the

statutory period of limitation. The counsel also refers to the case of Prem Chand Vs. Chetan Dass, , to urge that the applicant cannot be allowed to

add or substitute a new cause of action or nature of claim"" or an inconsistent plea to the admitted facts or a time barred claim by way of

amendment. Then reference is also made to the Full Bench decision of Madras High Court in the case of Ms. Hi Sheet Industries, 61-D, D.V.

Road, Ambur Town, Vellore District v. Litelon Limited 68, Sipcot Industrial Complex, Hosur, Managing Partner S. Gokul 2007 (1) R.C.R.(Civil)

It is observed in this case that the Court has wide discretionary power to allow such an amendment when it does not affect the cause of

action and when it does not introduce a new case and when there is no serious prejudice caused to the opposite party and when such amendment

is required to do justice.

The issue involved in this case is short and crisps. The plea of Mr. Palli is that the amendment which is allowed amounts to substituting the entire

cause whereby the earlier case pleaded is entirely discarded. This, however, is seriously disputed by the learned Counsel for the respondents, who

would say that the cause, continues to be the same viz., the personal necessity to seek eviction, but only facts have been changed wherein the need

of the son has now also become the ground for seeking eviction be cause of long pendency of the present petition. The issue in this regard as

framed by the court has already been reproduced above. The Court has to see if the demised shop is required for own use and occupation by the

petitioner or not. Mr. Battas has rightly relied upon the case of Madho Singh (supra) to say that the bona fide need of dependents of a landlord or

landlady is bona fide personal need of landlord or landlady himself or herself. The issue which thus would require to be decided would continued to

be the same, i.e., the requirement of shop for his own use and occupation. In that sense, it can be said that the cause of action has not changed.

The cause, which was to seek eviction of the petitioner on the ground that premises is needed for own use by the respondents, has still not been

discarded. It cannot, thus, be said that any new cause is being introduced. It needs to be noticed that the cause continues to be eviction on the

ground of personal necessity of the petitioner. The necessity of a son would not be independent of necessity of the petitioner and required to be

construed as own need and necessity of the petitioner himself. It would be worthy a notice that the need of a son has arisen during, the pendency

of this rent petition. Mr. Palli in all fairness was very fair and forthright in conceding that the respondents would be entitled to file a fresh suit on the

ground of necessity of their son. In this context, the ratio of law laid down in the case of Sukhdev Chand and Rajesh Kumar Aggarwal (supra)

would come into play. It has been held by the Hon''ble Supreme Court that where landlord is not debarred from filing a separate suit on the ground

on which the amendment is sought, then rejecting the prayer for amendment would amount to force the landlord to resort to another litigation which

is not in the interest of either landlord or a tenant. Similarly, where it is found that it is permissible for a person to file an independent suit, then as

observed in the case of Rajesh Kumar Aggarwal (supra) why the same relief which could be prayed for in a new suit cannot be permitted to be

incorporated in a pending suit. It is also to be noticed that procedural justice requires that the events and developments subsequent to the institution

of proceedings must be taken into consideration in appropriate cases to promote substantial justice. As can be observed that a need of a person to

seek eviction on account of personal use would not remain static. With the passage of time, the same would keep on changing. That is why the

principle of res judicata does not strictly apply to filing of another eviction petition on the ground of personal necessity. The subsequent events in

regard to the changed need of requirement of this premises for the son of the petitioner can certainly be taken into consideration to promote the

substantial justice. The general principle of law urged by Mr. Palli in regard to the power to allow amendment specifically when it does not affect

the cause of action by introducing a new case or when it does not cause serious prejudice to the opposite side are well settled. In the present case

that the cause of action to seek eviction continues to be ground of personal necessity of the petitioner, which has not changed in any manner. If the

petitioner is entitled to file a separate suit on the cause, the same can very well be allowed to be incorporated by way of amendment in the present

suit, when the issue requiring decision; would continue to be the same. I am thus, not inclined to interfere in the impugned order and would dismiss

the revision petition.