Muhammad Raza vs Zamiruddin

Courtney-Terrell, C.J.—These six analogous Letters Patent appeals arise from six out of 43 suits brought by the plaintiff against a number of defendants for rent of their holdings and the point for our decision arises only in connexion with these six suits. The suits were framed as claims for rent and the plaint in each case set forth the khata number of the holding in respect of which the claim was made. The plaint then went on to set forth the plot numbers appertaining to the plots comprised in the khata and it appears that the list of plot numbers was in each of these six cases incorrectly given. In some cases the specification in the plaint did not comprise the whole of the plot numbers in the holding and in some cases it set forth plots which were not in fact comprised in the holding.

The Munsif in dealing with these six suits dismissed them on the ground that they did not comply with the rule that a rent suit must be in respect of the entire holding and for nothing but the rent of the holding.

When the matter came before the learned Subordinate Judge he was of opinion that the Munsif should have, as he was in fact requested to do, allowed an amendment of the plaints so as to bring the plot numbers into conformity with the facts as regards each plot. He therefore reversed the decision of the Munsif in so far as it related to these plots and decreed the suits in favour of the landlord-plaintiff. The matter then went in second appeal to a learned Judge of this Court sitting singly who was of opinion that the amendment effected by the Subordinate Judge should not have been effected. He held that the amendment transgressed the rules of procedure that an amendment must not be allowed which changes the character of the suit.

Now with the greatest respect to the learned Judge of this Court I am of opinion that his judgment was erroneous because it confused in principle the considerations which affect matter of procedure with the considerations which affect the matter of the rights of the parties. It is common experience that when a Code of Procedure is laid down it gradually becomes elevated by the Courts into a Code not of procedure but of law. The relative position in the legal hierarchy between laws and procedure should be rigidly observed and procedure should not be dignified by being elevated to a set of leading principles. Section 148, Ben Ten Act, lays down the procedure which is to govern suits for rent. It does not affect in any way the rights of landlord to recover rent or the rights of tenants to resist the payment of rent but it merely lays down the principles which are to govern the process for the recovery of rent and Section 148(b1) requires that the plaint shall set forth a list of the survey plots comprised in the tenancy and a statement of the rental of the tenancy according to the Record of Rights, unless the Court is satisfied that the plaintiff was prevented by sufficient cause from furnishing such particulars. Now the rule is merely a rule for the giving of particulars in a plaint.

If the plaint does not contain those particulars the defendant may apply for them and the Court may of its own motion say that it refuses to allow the suit to proceed further unless those particulars are furnished but it is nowhere said and nowhere implied that the suit is to be dismissed if the plaint does not contain the required particulars or if it contains such particulars erroneously set forth. I should have thought that that point had been sufficiently decided by the judgment of this Court in the case of Kesho Prasad Singh v. Ramdhar Rai AIR 1931 Pat. 135 where the matter was discussed at length and was precisely the same matter which has been raised in this appeal. In this case the learned Subordinate Judge allowed the amendment.

It was open to the learned Judge to penalize the party whose negligence had necessitated the amendment by the infliction of an. order for costs and that is the normal and proper way in dealing with errors of procedure and the power to inflict such a penalty is ample to protect the parties. In my opinion therefore those six appeals should be allowed with costs in this Court (including the costs of the hearing before the Judge of this Court sitting singly) and before the Subordinate Judge. With regard to the costs of these six suits before the Munsif a different order should, I think, be passed. The unfortunate course of this case has been largely brought about by the negligence of the plaintiff in setting forth his claim in his plaint and therefore he should pay the costs of the hearing before the Munsif.

Fazl Ali, J.

I agree.