Munshi Khan vs Maya Devi

S.K. Dubey, J.

A Single Bench constituted by one of us (R.C. Lahoti, J.), while hearing the above appeal, confronted with cleavage of opinions rendered in three Single Bench decisions of this Court, namely M/s, Bhanwari Trilokchand v. Bannatwala Jain & Co. 1980 MPRCJ N 87 Deenanath v. Kishore Kumar 1981 (1) MPWN 110 and E V. Subbarao v. Udakchand Badkur 1982 MPRCJ N 36, which related to suits for eviction, instituted by a transferee/landlord, who acqired property, on grounds other than the grounds under S 12 (1) re) and 12 (1) (f) of the M.P. Accommodation Control Act, 1961, for short, the ''Act'', after elapse of one year, in view of the statutory provisions contained in Section 12 (4) of the Act, has referred the legal question for the opinion of a Division Bench whether Court can take notice of such subsequent event and pass a decree for eviction on the ground under S. 12(1) (e) or (f), as the case may be, on bonafide requirement.

In case of Deenanath and E V. Subbarao the view taken is that in view of the prohibition contained in S 12 (4) of the Act, a transferee/landlord cannot be allowed to set up the ground of bonafide requirement either under S. 12 (I) (e) or S. 12(1) (f) of the Act by way of amendment, after elapse the period of one year from the date of acquisition of the property by transfer, as the amendment dates back to the date of the suit and not to the date on which the application for amendment is made, while in M/s. Bhanwarilal''s case it was held that the landlord introducing another ground becoming entitled to him to eject his tenant on the ground envisaged under S. 12 (1) (e) and S. 12 (1) (f) of the Act, cannot be said to be making such amendment malafide.

For the decision of the above legal question facts material may be stated. The plaintiff/landlord/respondent acquired the suit accommodation by sale on 18-9-1972, and after serving a notice of demand and on expiry of the period of two months, as the appellant/tenant/defendant failed to pay or tender the whole of the arrears of rent legally recoverable from him, instituted a suit on 26-6-1973 seeking a decree of eviction u/s 12 (1) (a) and 12(1) (o) of the Act On 16-4-1980 the landlord moved an application under O 6, R.17, CPC, seeking/to introduce the ground of bonafide requirement under S. 12 (1) (e) of the Act, as the period of one year from the date of acquisition of the property by the plaintiff expired during the pendency of the suit. That application for amendment was opposed, but was allowed. No consequential amendment was made nor any revision against the amendment was preferred by the tenant. The suit was decreed on the grounds under S. 12 (1) (e) and S. 12 (1) (o) of the Act On appeal, the decree of eviction on the two grounds passed by the trial Court was confirmed. The decree of the two Courts was challenged in second appeal Upon hearing the appeal, having confronted with the conflicting judicial opinions in the three cases, the learned Judge referred the matter for resolving the conflict by the Division Bench.

Relationship of landlord and tenant, control of letting and eviction in the State of M.P. is governed and regulated by the various provisions contained in the Act an enactment to provide for expeditious trial of eviction cases on ground of "bona fide" requirement of landlords, and generally to regulate and control eviction of tenants from accomodations and for other matters connected therewith or incidental thereto

It is well settled that where the Rent Control and Rent Restrictions Acts are in operation, a landlord cannot snap his relationship with his tenant merely by serving a notice to quit, as is the position under the Transfer of Property Act, 1882 The landlord can recover possession of the property only on establishing one or more of the grounds or causes specified in Clauses (a) to (p) of S. 12(1) of the Act. Section 12 is not extracted in extension but the relevant provisions for the present purpose are quoted hereunder :

Restriction on eviction of tenants (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on the or more of the following grounds only, namely :

XXX

(e) that the accommodation let for residential purpose is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned;

(f) that the accommodation let for non residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business of that any of his major sons or unmarried daughters if he is the owner thereof or of any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonable suitable non-residential accommodation of his own in his occupation in the city or town concerned;

XXX

(4) where a lannlord has acquired any accommodation by transfer, no suit for the eviction of tenant shall be maintainable under sub-section (1) on the ground specified in clause (e) or clause (f) thereof, unless a period of one year has elapsed from the date of the acquisition.

XXX

A look to sub-sec (4) of S. 12 of the Act shows that there is a ligislative mandate that a landlord who acquires accommodation by transfer, cannot maintain his suit under Clauses (e) and (f) of sub-section (1) of S. 12, unless a period of one year has elapsed from the date of acquisition of the accommodation.

The effect of this Provision was considered first in case of Chandbai v. Phoolchand 1966 MPLJ 1080 wherein S.B. Sen, J., after considering and distinguishing the expressions used in S. 12 (1) and S. 12 (4), observed that in S. 12 (1) the words used are that "no suit shall be filed," whereas in S. 12 (4) the expression used is "no suit for the eviction of a tenant shall be maintainable." Strictly speaking the first expression means; one cannot go to the Court at all and the other is if one goes to the Court, he cannot support his action or keep it in existence. S. 12 (1) is a bar for starting an action, whereas S. 12 (4) is a bar for continuing the same after the filing of the suit which becomes dead immediately after its filing. The learned Judge then further observed in para 20 :

The argument that on the date when the Court passed the order more than one year had elapsed will not be available to him. One cannot continue a thing which is already dead. Dead man cannot be given a life. Though it is ore of the grounds on which he seeks ejectment but this ground is dead immediately after the filing of the suit on 1-1-1962. A litigant after filing a suit maintains the same if he does not withdraw it. It is therefore clear that on the next day he illegally maintained the suit. This is prohibited under the law. Therefore, a suit which is based on this ground cannot remain in existence.

In case of Harisingh v. Madanlal 1979 MPRCJ 65 G.L. Oza, J., as he then was, observed that by amendment after the elapse of one year, under law no decree could be passed on the basis of genuine requirement of the landlord, who acquired the property during the pendency of the suit, as it is well settled that the amendment made in the plaint takes effect on the suit, and the plaint remains a plaint presented originally.

In case of E. V. Subbarao v. Udakchand Badkur (supra) again G.L. Oza, J., observed that a plaint of S. 12(1) (e) could not be entertained by any Court if a year has not elapsed after the property was acquired in view of sub-section (4). As the amendment dates back to the date of the suit, such amendment cannot be allowed.

In case of Dinanath v. Kishore Kumar (supra), S. S. Sharma, J., followed the decision in Harisingh''s case (supra) and observed that on a reading of the two provisions, i.e., S 12(1) and (S) 2 (4) of the Act, it is crystal clear that the plaintiff could not have taken the ground for ejectment as is now sought to be added at the time when the suit was filed. It could not be disputed that in case the proposed amendment is allowed it would take effect from the date of the suit. That being so, this would clearly contravene the provisions of Section 12(1) and (4) of the Act. The principal of allowing amendment as a result of subsequent events, cannot be made applicable to a case like this.

A Full Bench of this Court in case of Chhotelal Vs. Akbarali and Another, while considering a case of new cause of action coming into existence the pendency of suit, observed in para 6 :

It was, however, urged on behalf of the defendant by Shri Waghmare that the language of S. 12(1) of the Act rules out induction of additional ground for eviction after the institution of a suit for eviction. The contention cannot be upheld. S. 12(1) of the Act merely provides that no suit shall be filed for eviction except on a ground specified in that section. This restriction on the right to institute a suit for eviction only emphasises that if a suit for eviction were to be brought without disclosing a ground specified in S. 12(1) of the Act, then in that case, the plaint would be liable to be rejected for failure to disclose cause of action There is nothing in the language of S 12 (1) of the Act, which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of S. 12(1) of the Act. It may be that in some cases, the requirement of a particular ground specified in S. 12 (1) of the Act is such as cannot be fulfilled unless that ground has come into existence prior to the filing of the suit, as in the case of a ground specified in Section 12 (1)

(d). But tenability of a ground sought to be added by way of amendment, does not affect the jurisdiction of a Court to permit that amendment. It may be that in such a case, it would be a sound exercise of discretion by the Court. If leave to amend is refused in as much as a decree for eviction cannot be passed on such a ground. But as already observed, this aspect of the matter has no impact on the question of jurisdiction of the Court to permit the plaintiff to amend the plaint by adding a new ground for eviction. Any observation to the contrary which can be read in Ratanlal v. Damodardas 1961 MPLJ 7 or Sunderlal v. Harprasad 1980 MPLJ 182, does not, in our opinion, lay down correct law.

(Emphasis supplied)

Recently, S. Awasthy, J, in case of Khumansingh v. Nathuram 1991 MPJR 123 dealt with the question at length in the light of the Full Bench decision in Chhotelal v. Akbarali (supra), and observed that although the plea of evicition on the ground of genuine need is incorporated in plaint by amendment on expiry of one year from the date of purchase of the accommodation, in a suit pending from within one year of purchase, decree for ejectment cannot be granted in view of the prohibition contained in S. 12 (4), otherwise it would defeat the very purpose of Section 12 (4) and would offend the two provisions of S. 12 (1) and S. 12 (4) of the Act

Shri Ramji Sharma, learned counsel for the landlord, contended that the principle of the processual jurisprudence, that the right to relief must be judged to exist as on the date of suit or institutes the legal proceeding, is a handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Therefore, for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and must, take cautious cognizance of events and developments, so as to shorten litigation, avoid multiplicity of proceedings and to do complete justice between the parties. Reliance was placed on apex Court decision in Shikharchand''s 1974 SC 1178. case, Pasupuleti Venkateswarlu Vs. The Motor and General Traders, , Hasmat Rai and Another Vs. Raghunath Prasad, case, and Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) by Lrs., case, and also a few decisions under S. 80, CPC, besides a few decisions of the Supreme Court under S. 80, CPC, viz., The State of Madras Vs. C.P. Agencies and Another, , Raghunath Das Vs. Union of India (UOI) and Another, and two Single Bench decisions of this Court in M/s Banwarilal Tiwari 1980 MPRCJ N 87, and Deo Bux v. Shantilal 1984 MPU N 12.

It is a fixed principle of law that a suit must be tried on the original cause of action, which governs not only the trial of suits but the appeals also. See Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others,

Order 7, Rule 7, CPC, requires that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

Generally, a Court takes notice of subsequent events to preserve rights of both the parties and to subserve the ends of justice. Where the Court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation, where the original relief has become inappropriate, by subsequent events the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event. If the property which is the subject-matter of suit is no longer available the Court will take notice of such event. See Laxmi and Co. Vs. Dr. Anant R. Deshpande and Another,

Recently, the apex Court in an eviction case between landlord and tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, in Gulabbai Vs. Nalin Narsi Vohra and others, after referring to its earlier decisions, observed in para 25 that "on a conspectus of all these decisions rendered by this Court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bonafide requirement."

While taking cautious judicial cognizance of ''post-natal'' events in exceptional circumstances explained by the apex Court in various cases, no Court will countenance to a party to alter, by his own manipulation, a change in situation and to plead for relief on the altered basis Equitable consideration for moulding the relief accordingly in certain exceptional situations cannot be had if the statute on which the legal proceedings are based, inhibits by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of legislation. Rights vested by virtue of a statute cannot be divested by the equitable doctrine. See Rameshwar and Others Vs. Jot Ram and Another,

(Emphasis supplied).

In Hasmat Rai and Another Vs. Raghunath Prasad, case, the Supreme Court said that it is well settled now that in a proceeding for ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary, the requirement must continue to exist on the date when the proceeding is finally disposed of.

(Emphasis supplied)

A proposed amendment based on subsequent events for moulding the relief can be allowed, but it is equally settled that no amendment should be allowed where it is expressly or impliedly prohibited by law. In that light the landlord''s application of proposed amendment is inhibited by the scheme of the Act, S. 12 (4) lays down that where a landlord has acquired any accommodation by transfer, no suit for the eviction of tenant shall be maintainable under sub-section (1) on the ground specified in clause (e) or clause (f) thereof, unless a period of one year has elapsed from the date of the acquisition. Therefore, the landlord cannot take advantage of the period of one year elapsed, in a suit filed on other grounds under S. 12(1), as the proposed amendment, if allowed, would date back to the date of filing of the original suit On that date the suit for eviction under S. 12 (1) (e) could not be maintained and, hence, could not be given life by the equitable doctrine setting at naught the prohibition created by statute.

Shri A. M. Naik, learned counsel for the tenant, has rightly contented that, ordinarily, when the amendment is allowed the principle of relation back applies except in cases where a new party is added to the suit, against whom the suit is deemed to be instituted on the date of the application of proposed amendment, if allowed; the principle of shortening of litigation cannot be extended beyond its real scope to bring in new controversies and new cases in the pending litigation.

The contention of Shri Sharma, placing reliance on cases under S. 80, CPC, can also not be accepted. Suffice it to say, the object of notice contemplated under S. 80, CPC, is to give the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised, without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and public Officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in S. 80 are not intended to be used as a boobytraps against ignorant and illiterate persons. See Raghunath Das Vs. Union of India (UOI) and Another,

The plea of waiver raised by Shri Sharma, placing reliance on Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra Ghosh and Others, and Hasmat Rai and Another Vs. Raghunath Prasad, can also not be accepted, for the simple reason that even if the tenant has not taken any objection in the Courts below about the suit being prohibited under law, that would not amount to waiver, S. 12 (4) of the Act prohibits such suit. Law is well settled that while considering a constitutional or a statutory Provision, there can be no estoppel or waiver against the statute; whether a party agreed or participated or did not object will not be of any consequence if the suit is prohibited under law, the party cannot be estopped from challenging the same. (See A.C. Jose Vs. Sivan Pillai and Others, Dunlop India Ltd v. Union of India AIR 1977 SC 597 , Nookala Setharamaiah Vs. Kotaiah Naidu and Others, and Thakur Amar Singhji Vs. State of Rajasthan,

As a result of the above discussion, we respectfully agree with the view taken in Deenanath v. Kishore Kumar and H.V. Subbarao v. Udakchand Badkur (supra), as also agree with the view taken in cases of Harisingh v. Madanlal; Chandbai v. Phoolchand and Khumansingh v. Nathuram, and are of opinion that in the aforesaid cases it has been rightly held that the application for amendment cannot be allowed or the relief based on subsequent event cannot be moulded, where it is inhibited by law.

In case of M/s Bhanwarilal Trilokchand v. Bannatwalo Jain & Co. (supra) the learned Judge has not taken into consideration the bar created by S. 12 (4) of the Act nor has taken note of the earlier two decisions in Chandbni v. Phoolchand and Harisingh v. Madanlal (supra): therefore, in our opinion, the decision in M/s. Bhanvarilal Trilokchand v. Bannatwalo Jain &Co. (supra) in par incuriam and cannot have any application in a case where the transferee/landlord acquiring the property, institutes a suit for eviction on grounds other than the ground under S. 12 (1) (e) or (f) and during the pendency of the suit on elapse of one year, seeks relief of eviction by amendment, adding the ground under S. 12 (1)(e) or S 12 (1) (f) of the Act.

Let the records be placed before the learned referring Judge for deciding the appeal on merits.

Per R. C. Lahoti, J. (13-1-92)

I have the benefit of going through the opinion recorded by learned brother S. K. Dubey, J. With respect to my learned brother, I have been unable to persuade myself to agree with him I, therefore, proceed to record my opinion separately.

The facts relevant are to be found mentioned in para 3 of ray learned brothers opinion. No re-statement is required. Only to recapitulate; there was a validly instituted suit for ejectment pending, in the Court; the need of the plaintiff for occupation of suit premises by self and family members, contemplated by clauses (e) of Section 12 (1) of the Act did exist even on the date of the institution of the suit but that ground for eviction could not have been relied on by the plaintiff on the suit in view of the bar enacted by Section 12 (4) of the Act, the plaintiff being a transferee-landlord, with the lapse of one year the subsequent event occurred lifting away the bar enacted by Section 12 (4) and the plaintiff proposed to amend the plaint so as to rely on and bring to the notice of the Court, this subsequent event which had the effect of providing the plaintiff with an additional ground of ejectment supporting the prayer for relief of ejectment already made in the plaint. The question arising for decision is : whether in view of the bar contended by Section 12 (4) of the M. P. Accommodation Control Act, 1961, (hereinafter referred to as "the Act" for short), a transferee landlord can be pesmitted to introduce the ground for eviction available u/s. 12 (1) (e) or (f) in a suit instituted on other grounds but within one year of the date of acquisition of title in accommodation by the landlord 7

The learned counsel for the landlord has relied on a number of decisions from the Apex Court holding that the Court is bound to take notice of such a subsequent event and an amendment directed towards that and cannot be refussed. The learned counsel for the tenant has on the contrary submitted that Section ''2 (4) of the Act contains a rider which overrides the general power of the Court to permit amendment of pleadings under Order 6 Rule 17 C. P. C. and hence jurisdiction to permit amendments, offensive of Section 12 (4) of the Act, stands taken away.

The leading authority on the point of Court''s power to take note of subsequent events is Pasupuleti Venkateswarlu Vs. The Motor and General Traders, Their Lordships held :

For making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.

Reference may also be had to Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, , Satish Chand Makhan and Others Vs. Govardhan Das Byas and Others, , B.R. Ramabhadriah Vs. Secretary, Food and Agriculture Department, Andhra Pradesh and others, ; Laxmi and Co. Vs. Dr. Anant R. Deshpande and Another, review of the authorities shows that subsequent events are taken notice of by Courts primarily with the avowed objects of shortening the litigation; subserving the ends of justice, and preserving the rights of parties

Order 6 Rule 17 of the CPC vests the Court with a jurisdiction to permit an amendment in pleading at any stage of the proceedings which may be necessary for the purpose of determining the real questions in controversy between the parties. The approach has to be liberal, so as to advance the cause of justice. The golden thread which commonly runs through the two nets of the principles underlying the Courts power to permit amendment of the pleadings and of the Court''s power to take notice of subsequent events is: to shorten litigation and to avoid circuity of action in law Courts.

It is also well settled that the law should have a purposive interpretation. The Court should try to ascertain the object underlying an enactment and to so interpret the law as to advance the attainment of the purpose sought to be achieved.

The power of the Court to permit amendment in the pleadings inheres from the procedural jurisprudence. In Ms. Shwe Mye v. Mating Ho Hneung AIR 1922 SC 244 their Lordships of the Privy Council observed;

All rules of Courts are nothing but provisions intended to secure the proper administration of justice, and it is, therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised.

So is the view taken in Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, Both these decisions were followed by these Full Bench of this Court in Chhotelal''s case (infra).

Before I may proceed to examine several decisions of this Court wherein there appears to be a conflict it would no better if I make a reference to two decisions, one by the Supreme Court and the other by a Full Bench of this Court because, in my opinion, the law laid down therein which bind this Court does not leave much of scope for the controversy to survive.

In Majati Subbarao v. P. V. K. Krishna Rao 1989 SC 2187, in a suit for eviction, the tenant/defendant in the written statement denied the title of the plaintiff/landlord. The question arose whether such danial of title in the written statement could be relied on by the plaintiff/landlord as a ground for ejectment of the tenant inasmuch as the ground was not available to the plaintiff on the date of the institution of the suit. It was not disputed that such denial of title did provide the plaintiff/landlord with a cause of action for initiating eviction proceedings and those proceedings if instituted independently, would definitely be valid. The questions arose, what would be the landlord filing a second suit for ejectment and why the same ground could not be taken notice of in these very proceedings. Their Lordships held :

To insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant''s denial of his character as a tenant in the written statement.

Chhotelal Vs. Akbarali and Another, is a Full Bench decision of this Court. The Full Bench was posed with the following question for its opinion :--

Whether a ground for eviction u/s. 12 (1) of the Act which was not in existence at the time of filing of the suit, but came into existence during the pendency of the suit can be made a ground for eviction by amendment of the plaint and whether a decree for eviction can be based on such ground?

(underlining by me)

2 Sohani, J. (as His Lordship then was), speaking for the Court referred to several Supreme Court and Privy Council decisions touching the power of the Court to take note of subsequent events, the procedural nature of the law relating to amendment of pleadings, and whether the permitting of such amendment would result in any injustice to the other side. The Full Bench then answered the question referred to it in the following terms : -

A ground for eviction u/s 12 (1) of the Act which was not in existence at the time of the filing of the suit, but came into existence during the pendency of the suit, can be made a ground for eviction by amendment of the plaint and a decree for eviction can be passed on such ground if that ground is established by the plaintiff.

(underlining by me)

It is noteworthy that on behalf of the tenant it was argued before the Full Bench that the ground for eviction must exist on the date of the suit and Section 12 (1) of the M. P. Accommodation Control Act provides--"no suit for eviction can be filed except on a ground specified in that Act", which phraseology is different from those occurring in other Rent Acts such as that "no decree for eviction shall be passed unless a ground specified in the Act has been made out." The Full Bench opined that the difference in the two phraseologies was not of much consequence The Full Bench further opined :--

There is nothing in the language of Section 12 (I) of the Act forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of Section 12 (1) of the Act

''''Distinction was sought to be drawn before us by the learned counsel for the tenant that the Full Bench had only opined that the Court had a jurisdiction to permit the amendment and had left the question open whether inspite of the amendment having been permitted whether the Court could decree that suit on such added new ground of eviction. This attempt at drawing the distinction cannot be much appreciated because the Full Bench has vide para 7 (quoted hereinabove) clearly stated that on the ground introduced by amendment being established, a decree for eviction on such ground could be passed.

Now I take up the decisions constituting the conflict.

The view taken in M/s Banwarilal Trilokchand v. Bannatwala Jain & Co. 1980 MPRCJ SN 87 and accords with the Full Bench decision abovenoted. In a pending suit for ejectment filed by a transferee landlord, ground envisaged u/s. 12 (1) (a) and (f) of the Act was sought to be added by amendment on the same being available. B. C. Varma J. (as he than was) held that the landlord was entitled to add and claim the relief of ejactment of his tenant on grounds which became available to him during the pendency of the suit for that purpose.

The cases taking the view to the contrary may now be noticed and dealt with.

1 Dinanath v. Kishor Kumar 1981 1 MPWN 110 E. V. Subbarao v. Udakchand Badkur 1982 MPRCJ SN 36 are the single Bench decisions wherein the matter came to this Court in Civil revisions preferred by the tenants challenging the order of the trial Court permitting the amendment. Both the decisions follow the view taken in Harisingh v. Madanlal 1979 MPRCJ 65 , wherein the Apex Court decision in B. Banerjee Vs. Smt. Anita Pan, considered and distinguished Khumansingh v. Nathuram 1991 MPJR (1) 123, is a single Bench decision in second appeal. In all the three cases, the view taken is that a transferee landlord cannot be permitted to introduce by way of amendment claim for eviction under clauses (e) or (f) of sub-section (1) of Section 12 of the Act if the suit was instituted at a point of time when a period of one year from the date of acquisition of title by the landlord had not elapsed.

2 An in-depth examination of these decisions reveals that : (i) the decisions of the Supreme Court laying down law as to the power of the Court to take note of subsequent events have been held inapplicable to such a case and (ii) the doctrine of relation back has been applied to hold that, any amendment in the plaint once permitted would relate back to the date of the institution of the suit and the grounds ought to be added by way of amendment being not available on the date of the institution of the suit, the suit seeking ajectment on the ground available under clause (e)/(f) would be bad on account of the bar created by Section 12 (1) & (4) of the Act.

3 The infirmity with which these decisions suffer is that the doctrine of ''relation back'' has been taken as one of universal application without considering that it was not so. There may be situations where an amendment permitted in the plaint may not relate back to the date of institution of suit and the suit shall have to be deemed to have been instituted on the date of application for amendment in so far as the ground added by the amendment and the relief related therewith are concerned. Another features of the three decisions is that they refer to the Apex Court decision in B. Benerjee''s case (supra) but hold that the law laid down by their Lordship was not applicable to such situation as was at hand. I would advert to B. Banerjee case (supra), a little later to demonstrate that the Jaw enunciated in B. Banerjee''s case applies with full force, on all the fours, to the case at hand and attempt at making a departure therefrom is indeed troading on risky grounds for the law laid down by the" Apex Court is the law of the land under Art. 141 of the Constitution and binds all the Courts subordinate as also the High Courts.

Let a word now be said about Harisingh v. Madanlal 1979 MPRCJ 65 which is the first decision by the High Court of Madhya Pradesh wherein B. Banerjee''s case (supra) has been considered, examined and analysed in details, as observed in the two decisions, namely, M/s, Banawarilal Trilokchand and Dinanath (supra).

1 In Harisingh''s case, a landlord filed a suit for ejectment and arrears of rent etc on 13-10-66. During the pendency of the suit on 23-12-69, the house was transferred by him. On 19-1-70 the new landlord was allowed to be joined as a party to the suit. Thereafter, on lapse of one year from the date of purchase by the transferee landlord he moved an application for amendment introducing a ground of his genuine need of ihe premises. P. Venkatesharlu''s case (supra) was distinguished by the learned Single Judge saying that it was not a case laying down any interpretation of law as regards the Madhya Pradesh Act. B. Banarjee''s case was also distinguished by saying that it did not lay down the law which would make inoperative the restriction contained in Section 12 (4) of the M. P. Act. The Theory of relation back of an amendment in the plaint was applied. This triple reasoning prevailed for holding that the amendment was not permissible and the decree based on such amendment could not be passed.

First, I take up the doctrine of relation back in its application to amendments permitted in the pleadings so as to find out whether each and every amendment in the pleadings necessarily relates back to the date of its institution, and if not, then whether the rule has any permissible exceptions.

1 In Gram Panchayat Deh v. Kesho Narain & Ors. AIR 1964 P&h 46 the doctrine of relation back has been stated in the following terms :--

As is well settled, amendment in plaint normally relates back to the date of the institution of the suit except where question of limitation atises on account of new parties being impleaded or new cause of action in regard to some other property being urged for relief.

2 A Division Bench of Calcutta High Court in Manindra Chandra v. Ranglal AIR 1918 Cal 443, faced with a situation where new items of property were added in the plaint and relief relating thereto was also prayed for the question arose as to when the suit would be deemed to have been instituted as regards the new items added in the plaint. The Division Bench held :--

As regards such new lands, the suit which is taken to have been filed will date from the date when the claim was made in respect thereof.

X

We, therefore, hold that as regards all lands not included in the plaint as first filed, the suit must be taken to have been instituted on 16th August 1911.

The date of application for amendment was 16th Aug. 1911.

41-3 In Deobux v. Shantilal 1984 MPLJ SN 12 this Court has directed--

The application for amendment was liable to be allowed subject to the condition that in regard to the relief of possession the suit should be deemed to have been instituted on the date of filing of the amendment application.

Meaning thereby that the Court has authority and jurisdiction to play against the doctrine of relation back and say that the suit shall be deemed to have been instituted on ths date of application as regards the relief founded amendment

4 The State of Rajasthan and Others Vs. Rao Dhir Singh and Others, was a case where an additional claim was preferred by way of amendment in a pending suit. It was sought to be contened that the amendment would relate back to the date of the suit. Repelling the contention, the Division Bench held :

The amended plaint relates back to the date on which the amendment application was filled.

5 In Jawahar Lal Motumalmamtani Vs. Bhag Chand Motumal Ramtani and Another, the High Court of Delhi while permitting an amendment in the plaint, directed that--

The amendment of the plaint would take effect from the date of the application and not from the date of the institution of the suit.

6 I would close this topic by referring to Naraindas Mathuradas Narielwala Vs. Mukesh and Co., wherein the Bombay High Court said :

It is not correct to say that every amendment relates back to the date of the suit, as for example, very often subsequent events are allowed to be brought on record by an amendment, and there is no question of such amendment relating back to the date of the suit.

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The Court is bound to take note of the change in law, just as the Court takes note of change of fact, if the same becomes relevant.

7 A review of the abovesaid authorities indicates that the doctrine of relation back in the matter of amendment of pleadings has two well recognised exceptions, wherein the Court may refuse to apply the doctrine. They are : (i) when a new party is added in the suit, and (ii) when a new party of action and/or a new item forming subject matter of suit is added or substituted. In such cases, the Court may hold that, that amendment would relate back to the date of application for amendment and the suit as regards thereof shall be deemed to have been instituted on the date on which the application for amendment was filed.

In the case at hand though no new party iS being added yet can it be said that introduction of a new ground of eviction constitutes a new cause of action ? The Full Bench in Chhotelal''s case (supra) vide para 3 thereof has held :

after the decison of the Supreme Court in V. Dhanapal Chettiar Vs. Yesodai Ammal, it is well settled that a ground of eviction under the Rent Act constitutes a cause of action.

With greatest respect to the learned Single Judges deciding the cases referred to in paras 39 and 40 above, I may observe that the abovesaid aspect has escaped their attention.

Now is the time to read the law laid down by the Apex Court in S. Banerjee''s case (supra). It was a case under the West Bengal Premises Tenancy Act. A suit was instituted seeking ejectment on the ground of genuine requirement. During the pendency of the proceedings, the Act was amended so as to introduce a ride whereby a landlord acquiring interest in the premises by transfer was disqualified from instituting a suit for ejectment on the ground of genuine requirement before the expiry of a period of three years from the date of acquisition of such interest. The plaintiff was a transferee-landlord having instituted the eviction proceedings before the expiry of the period of three years. Having held that the Amending Act was retrospective in its operation in the sense it applied to the pending suits at whatever stage, whether before the trial Court or before the appellate Court, their Lordships held that the suit was rendered bad at its very incaption on account of the amendment in the Act. Yet what should be the approach of the Court in interpreting such provisions and what should be the permissible course of action to the plaintiff-landlord in such a suit are the question which were left not unanswered by the majority of Hon''ble Judges constituting the Bench. Hon''ble Justice Krishna Iyer speaking for the majority said :

as far as possible Courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by the legislation, should be preferred to any literal, pebantic, legalistic or technically correct alternative.

1 Their Lordships refused to accept the argument that the suits must be straightway dismissed, the institution being invalid. Their Lordships refused to agree with the submission that such a conclusion was inevitable. The complex situation was resolved justly by their Lordships, (though that resolution was agreed to by the counsel for the parties too) by observing that "the policy of the legislating and conditions in the Amendment Act would be fulfilled", by doing so. Their Lordships directed the plaintiffs in the two cases of file fresh pleading setting out their grounds under the amended law and held that on such pleadings being filed the transferee landlord would be deemed to institute his suit on that date. If the plaintiff was to put such a pleading then in the words of their Lordships :

We can say he has begun or instituted a suit for the recovery of possession of the premises on that ground Institution of a suit earlier has to be ignored for this purpose since that was not based on grounds covered by cl. (f) and/or (ff) and is not attracted by subsection 3-A). He begins proceedings on these new grounds only when he puts in his pleading setting out these grounds. Tn spirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorporation amendments is the sacred requirement of the law. On the other hand social justice and the substance of the matter find fulfilment when the fresh pleadings are put in, subject of course to the three-year interval between the transfer and the filing of the additional pleading.

Vide paras 29 and 30 their Lordships observed :

We are conscious that to shorten litigation we are straining language the little extent of interpreting the expression ''institution of the suit as amounting to filing of fresh pleading. By this construction we do no violence to language but, on the other hand promote public justice and social gain, without in the least imperiling the protection conferred by the Amendment Act.

Ruinous protraction of litigation, whoever may temporarily seem to benefit by delay, bankrupts both in the end and inflicts wounds on society by sterile misuse of money. Tenant passengers who prolong their expensive flight on the litigation rocket, are buying tickets for financial crash, drugged, though they be by the seeming blessings of law''s delays. Courts, by interpreting the expression ''institution of suits'' can not authorise reincarnation, all over again, of litigation for eviction. We save the tenat by applying it to pending cases and save him also from litigative waste.

(undelining by me)

2 I am unhesitatingly of the opinion that merely because the law enuncitated by their Lordships was also agreed to by the learned Advocates representing the parties does not in any manner whittle down its afficacy and binding nature as a precedent, may as the law laid down and the course of action taken therein by the Apex Court.

What would happen if the contrary view is taken applying the doctrine of relation back with rigidity ? If ''introduction of a ground in support of claim for eviction'' were to be treated at per with ''institution of suit", undesirable consequences would follow. Law''s delays are a menace to the society and a judicially noticeable fact. A sizable proportion of the Court cases belongs to landlord-tenant litigation. Driving the landlord to the necessity of filing an independent suit would be inviting multiplicity of needless proceedings throwing the landlord into factual whirpool of litigative process and permitting procedural bottlenecks to prop up though avoidable otherwise adding to mythical figure of pending case in Courts, with practically no benefit to the tenant As is apparent from their Lordships ''decision in B. Banerjee''s case (supra), that course would be revious protraction of litigation detrimental both on the landlord and the tenant.''

45, The right of the plaintiff to institute a fresh suit cannot be taken away and in spite of the pendency of the earlier suit praying for a similar relief the plaintiff landlord would be well within his fights in filing a fresh suit on this new cause of action. There will be two parallel suits between the same parties touching the same property and praying for the same relief, resulting in multiplicity of suits and circuity of legal action, condemne (sic)d by the Apex Court in Nair Service Society''s case (supra), also in many other cases. May be, if either party were to move an application for consolidation of the suits, the District Court or this Court in exercise of its jurisdiction u/s 151 CPC and/or Article 227 of the Constitution and even the trial Court if the two suits be in the same Court, would only bepleased to direct consolidation of the two suits or at least an analogous hearing. That would be a cumbersome procedure creating several complications arising at the time of decision, drawing up of decrees and preferring the appeals thereafter. All this would be batter avoided by permitting an amendment in the pleadings as contemplated by Rule 6, Rule 17 CPC giving weight to the intendment underlying the power of the Court in permitting the amendments. If two causes have to be tried side by side in two Court files why not permit them being tried as one cause in one file ?

The Single Bench decision in Chand Bai v. Phoolchand 1966 MPLJ 1080 is totally basides the point and does not lay down anything which may be of assistance in resolving the controversy at hand. In February 1961, the plaintiff/landlord purchased a property. On 30-12-1961, the Act came into force. The suit seeking ejectment of the tenant on the ground of genuine requirement was filed on 1-1-67, that is, within one year of the date of purchase. The suit was bad at its very inception. This Court held that what was bad, invalid or nonexistent in the eye of law at very inception, could not be infused with life merely by lapse of one year The Court repelled the argument that lapse of one year during the pendency of the suit would enable the suit being saved from the arena of Section 12 (4) of the Act. The genuine requirement was the singular ground of ejectment agitated in the suit. It may be noted that observations made in para 22 of Chandbai''s case lend mild support to my reasoning. The Court did not rule out the possibility of that ground being validly introduced by an amendment on lapse of one year from the date of purchase observing that ''that situation would be governed by different considerations which was not proper to discuss there."

The three decisions taking the view to the contrary and noticed in para 39 above do not appeal to me for the reasons that they hold the doctrine of relation back as one of universal applicability oblivious of the fact that it has well recognised exceptions and they read down the law laid down by the Apex Court in B. Banerjee''s case (supra), also attempt at distinguishing therewith, the courses not permissible in view of Art. 141 of the Constitution and that the view taken therein runs counter to the law laid down by the Full Bench of this Court in Chhotelal''s case (supra)

If only the doctrine of relation back would have been one of universal applicability, even time-barred claims would stand alive. Time barred claims can be permitted to be incorporated by way of amendment in view of the Jaw laid down by the Apex Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., and once allowed to be included in the Plaint the doctrine of relation back would say that the claim would be deemed to have been made on the date of the institution of the suit itself. Such an anamoly is beyond contemplation. In Jawahar Lal Motumalmamtani Vs. Bhag Chand Motumal Ramtani and Another, it was held :

If the amendment is allowed to take effect from the date of the original plaint, then it may have the effect of reviving the title of the original owner who has lost it by prescription. Such an amendment would work injustice to defendant and cannot be allowed.

It is interesting to make a comparative reading of relevant parts of sub-section (1) and (4) of Section 12 of the Act.-

Table -1

Sub-sec. (1)

No suit shall be filed in any civil Court against a tenant for his eviction except on one or more of following grounds--

Sub-sec. (4)

No suit for eviction of a tenant shall be maintained under sub-section (1) on the ground specified in clause (e) or (f) thereof unless a period of one year has elapsed from the date of acquisition.

Though the word ''suit'' occurs in both the sub sections, the Legislature has deliberately chosen to use term ''Filed'' in sub-section (I) and the term ''maintainable'' in sub-section (4) ''Filing'' means ''putting upon the file''. It is only a physical act performed by or on behalf of litigant. ''Maintainability'' and ''entertainability'' are the stages in litigation much beyond. Chamber''s 20th Centure Dictionary, New edition 1983, defines ''entertain'' to mean ''to maintain''. In law maintainability and entertainability are two sides of the same process. Looked at from the point of view of litigant what is ''to maintain'', is to ''to entertain'', looked at from the point of view of tribunal or Court. The word ''entertain'' is not merely to receive or accept but ''to proceed to consider on merit''. See Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, Nanu Vasudevan Vs. Kalikarthiayaniamma and Another, The Legislature could very well have used the word ''filed'' in sub-section (4) too, which it did not do. Under sub-sec (4) the Court is called upon to examine the ''maintainability'' which shall only be on claim for ejectment on such ground being put up before the Court for its consideration, which would only be the date of amendment (in cases like the present one), and can never be the date of filing of plaint wherein such claim was not even made. Legislative intent also excludes the applicability of doctrine of relation back to such cases.

After all what was the object behind enacting Section 12 (4) in the Act. Such restrictions in Rent Control Laws are intended to curb the inclination of frequently transferring ownership in the tenanted premises with the idea of a transferee landlord being conveniently chosen by an unscrupulous landlord and being projected to claim eviction by advancing a ground of his personal necessity and thereby defeating the provisions of the Act. The Madhya Pradesh Legislature in its wisdom has considered one year''s waiting to be enough to act as counter blast to that avaricious tendency In certain Rent Acts prevalent in other States a period of three years bar and somewhere five years bar has been considered a necessity. The underlying idea is to secure one year''s waiting (in Madhya Pradesh).

Occasions have not been scarce, their Lordships of the Supreme Court judicially noticing the abnormal delays in the disposal cf landlord tenant cases forming the major part of the litigation in civil Courts and that is why their Lordships had to say that not the tenants alone but the landlords too were at times the persons deserving the lable of weaker-section of the society and hence the rent control legislations were the pieces of legislation beneficial both to the landlord and to the tenant.

Their Lordships in Ganpat Ram Sharma and Others Vs. Gayatri Devi, pr. 21 observed :

This is a beneficial legislation, beneficial to both the landlord and the tenant. It protects the tenant against unreasonable eviction and exorbitant rent. It also ensures certain limited rights to the land to recover possession on stated contingencies.

The common stock argument usually advanced on behalf of the tenant that the tenants are the weaker section of the society and hence the rent control Acts are always to be interpreted to their benefit stands repelled by the observations made by their Lordship in Prabhakaran Nair and Others Vs. State of Tamil Nadu and Others, Para 36 "tenant are in all cases not the weaker sections. There are those who are weak both among the landlords as well as the tenant. Litigation must come to end quickly.''''

In Kewal Singh Vs. Smt. Lajwanti, their Lordships judicially noticed the plight of the landlords genuinely requiring premises for their own needs :

It is a matter of common knowledge that even though the landlord may have an immediate and imperative necessity for vacating the house given to a tenant he is compelled to resort to the time consuming and dilatory procedure of a suit which takes years before the landlord is able to obtain the decree and in most cases by the time the decree is passed either the landlord dies or the need disappears and the landlord is completely deprived of getting any relief.

Laying down the principle to borne in mind while interpreting the provisions relating to ejectment of tenant on the ground of landlord''s bona fide requirement, their Lordships said :

while the rent control legislation has given a number of facilities to the tenants it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For ins-lance one of the grounds for eviction which is contained in almost all the Rent Control Acts in the country in the question of landlord''s bonafide personal necessity. The concept of bona fide necessity should be meaning fully construed so as to make the relief granted to the landlord real and practical.

It follows that Section 12 (I), clauses (e) and (f) thereof, and subsection (4) have to be interpreted harmoniously so that the minimum rights of the landlords protected by Lagislature are not offended. At the same time, the object of the Lagislature is fulfilled and the provisions receive a harmonious, meaningful and purposive interpretation.

Recently in S. Surjeetsingh Kalra v. Union of India and another1, their lordships deprecated mechanical interpretation of enactments in preference to purposive interpretation saying that it was the duty of the Court to give effect to the intention of the Lagislature. Their Lordships observed :

True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words" (Craies Statute Law, 7th Edn., p 109) Similar are the observations in Hameedia Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, where it was observed that the Court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of statute in which the said provision is enacted the Court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to advance the remedy intended by the suatute See Sirajul Haq Khan and Others Vs. The Sunni Central Board of Waqf, U.P. and Others,

The theory of purposive interpretation of the laws is : Judges cannot interpret statutes in the light of their own views as to policy, but they cannot adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by Jaw to refer as aids to interpret on an expression of Parliament''s purpose or policy. Ragina v. Barnet London borough Council Ex parte Nilish Shah (1983) 1 All ER 226 , referred to in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, A right construction of the Act, said Lord Porter, can only be attained if its whole scope and object together with an analysis of its working and the circumstances in which it is enacted are taken into consideration AIR 1940 82 (Privy Council) referred to in Prem Chand Jain and Another Vs. R.K. Chhabra,

In Kehar Singh and Others Vs. State (Delhi Administration), the theory of purposive interpretion has been highlighted and summed up by their Lordships in the following terms :--

In the past, the Judges and lawyers spoke of a ''golden rule5 by which statutes were to be interpreted according to grammatical and ordinary sense of the word. They took the grammatical or literal meaning unmindful of the consequences. Even if such a meaning gave rise to unjust results which legislature never intended, the grammatical meaning alone was kept to prevail. They said that it would be for the legislature to amend the Act and not for the Court to intervene by its innovation. During the last several years, the ''golden rule'' has been given a go-bye. We now look for the ''intention'' of the legislature or the ''purpose'' of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound these words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed we deem it an our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision We examine the Act as a whole. We examine the neceesity which gave rise to the Act. We look at the mischief which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision but of the frames work of the sratute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they own their origin. We will consider the previsions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences. This adventure, no doubt, enlarges Courts'' discretion as to interpretation. But it does not imply power to Courts to substitute its own notions of legislative intention. It implies only a power of choice where differing constructions are possible and different meanings are available

(underlining by me)

Whether a transferee landlord is required to wait for one year before instituting the suit for eviction based on his personal requirement or is required to wait for one year before amending his pending suit by introducting the newly acquired cause of action on expiry of one year from the date of acquisition of title by him - in either case the object behind the provision is achieved and the underlying legislative intent is well fulfilled, the tenant enjoys one year''s spell before being required to face the transferee landlord raising the ground of bonafide requirement as basis for claim of ejectment. No injustice is done to him. Little or more inconvenience to him can well be compensated by awarding reasonable/suitable costs. Costs is panacea that heels every sore in civil litigation. I am, therefore, of the opinion that ''no suit shall be filed'' as occurring in Section 12 (1) of the Act, has not taken away the right of landlord to ''incorporate an additional ground of ejectment in a pending suit validly instituted otherwise, on cause of action arising'' and there the bar created by Sec. 12 (4) does not operate against such incorporation.

To sum up the conclusions I am of the opinion that M/s Banwarilal Trilok chand''s 1980 MPRCJ N 87 , case lays down the correct law and is in accordance with the view taken by the Supreme Court in B. Banarjee''s case and Full Bench of this Court in Chhotelal Vs. Akbarali and Another, case Harisingh''s 1979 MPRCJ 65 case, Dinanath''s case, ( 1981 I MPWN 110 and E. V. Subbarao''s 1982 MPRCJ N. 36 case, do not lay down the correct law. Khumansingh''s 1991 MPJR (1) 123 case also was not correctly decided to the extent to which it holds (vide paras 15 to 21 thereof) that ground of genuine need cannot be incorporated by amendment on account of bar created by Sec. 12 (4) of the Act. Chandbai''s 1966 MPLJ 1080 case is distinguishable and does not have any applicability to the case at hand. I hold that in a pending suit for ejectment duly instituted otherwise, the transferee landlord plaintiff can, on expiry of a period of one year from the date of acquisition of the property by him, incorporate a ground of genuine requirement under clause (e) and/or (f) sub-section (1) of Section 12 of the Act and Section I (4) of the Act does not create a bar either in such amendment being allowed or the Court passing a decree on such claim introduced by amendment.

(Order of the Bench dt. 13-1-92)

As we have recorded separate opinions in the Reference, lei the matter be placed before hon''ble the Chief Justice for constituting an appropriate Bench for its opinion.

Dr. T. N. Singh, J.--(Order dt. 18-8-92)

This appeal came up for hearing before R.C. Lahoti, J., who found an apparent conflict between the view taken in the three decisions rendered by learned Single Judges of this Court on the question mooted in the appeal. The matter, thereafter, came up before a Division Bench of which he was also a member. However, he found unable to persuade himself to agree with the Presiding Judge (S. K. Dubey, J.) and as a result of difference of opinion between them, the controversy is to be finally resolved by me.

This is defendant''s second appeal. Two Courts have decreed the suit of the plaintiff/respondent for his eviction on the "ground" contemplated u/s 12 (1) (e) of the M. P. Accommodation Control Act, 1961, for short, the ''Act''. The plaintiff''s case was that she had purchased the suit premises on 18-9-1972 from one Noor Beg but she did not get vacant possession as the defendant was occupying the same as Noor Beg''s tenant. After her purchase, for defendant''s eviction, she instituted the suit on 25-6-1973 basing her claim on clauses (e) and (o) of Section 12 (1). During the trial of the suit, on 10-4-1980, para 6-A was inserted in the plaint to add further the "ground" contemplated under clause (e) of Section 12 (1). The short question surfaced for decision in this Reference is the effect of the said amendment on defendant''s rights and interests in the suit premises and on the validity of the decree passed accepting plaintiff''s claim for his eviction on the "ground" incorporated by that amendment

The view expressed by S. K. Dubey, J., is that amendment necessarily would relate back to the date of institution of the suit and plaintiff''s entitlement would, therefore, be hit by sub-section (4) of Section 12 because one year''s period had not elapsed between her purchase of the suit premises and institution of the suit. According to him, the decision in M/s Banwarilal Trilokchand v. Bannatwala Jain & Co 1980 MPRCJ N-87, did not lay down the law correctly and that the decisions to the contrary. Chandbai v. Phulchand 1966 MPLJ 1080, Hari Singh v. Madanlal 1974 MPRCJ 65, Deenanath v. Kishore Kumar 3981 (I) MPWN 110 and E. V Subba Rao v. Udakchand 1982 MPRCJ N 36 stated the law correctly. Taking the opposite view, R. C. Lahoti, J., has observed that Section 12 (4) is to be subjected to norms of purposive interpretation and excluded from operation of the doctrine of "relation back". According to him, Bhanwarilal Trilock chand (supra) has laid down the law correctly and the contrary view expressed in the other decisions is incorrect. In their orders, the learned Judges have referred to a large mass of case-law to support their respective views to which, I shall have occasion to refer briefly in due course.

First, it is necessary to extract relevant portions of Section 12 of the Act:

Restriction on eviction of tenants.--(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely;

XXX

(e) that the accommodation let for residential purposes is required bonafide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned;

(f) that the accommodation let for non-residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that of any one of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable nonresidential accommodation of his own in his occupation in the city or town concerned;

XXX

"(4) Where a landlord has acquired any accommodation by transfer, no suit for the eviction of tenant shall be maintainable under sub-section (1) on the ground specified in clause (e) on clause (f) thereof, unless a period of one year has elapsed from the date of the acquisition.

(5) Where an order for the eviction of a tenant is made on the ground specified in clause (e) of sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of period of two months from the date of the order.

(6) Where an order for the eviction of a tenant is made on the ground specified in clause (f) of sub-section (1), the landlord shall not be entitled to obtain possession thereof-

(a) before the expiration of a period of two months from the date of the order: and

(b) if the accommodation is situated in cities of Gwalior (including Lashkar and Morar), Indore, Ujjain, Ratlam, Bhopal, Jabalpur, or Durg or such other towns or cities specified by the State Government by a notification in that behalf unless the landlord pays to the tenant such amount by way of compensation as may be equal to."

XXX

Before referring to the other provisions of the Act, a bit of legislative history, relevant to the controversy, may be injected at this stage. The Act was amended in 1983 when clause (e) and (f) of sub-section (I) and subsections (4), (5) and (6) of Section 12, were omitted. Simultaneously, a new Chapter. Chapter III-A with Sections 23-A to 23-I, was inserted. That Chapter carries the heading, "Eviction of Tenants on Grounds of "Bona Fide'''' Requirement". However, the Act was again amended by Act No. 7 of 1985 w. e. from 16-1-1985 replacing an Ordinance promulgated on 10-1-1985. Sub-sections (4), (5) and (6) along with clause (e) and (f) of subsection (1) have been reinserted in Section 12, allowing, at the same time, the new Chapter III-A to continue in an amended form by incorporating in that Chapter new Section 23-J and at the same time, in Chapter III, a new provision. Section 11-A is simultaneously inserted.

Much light is shed on the controversy mooted in this appeal of the object of the amendment in the Act firstly, in 1983 and then, in 1985. The foremost duty of this Court is indeed to divine legislative will and to effectuate the same by construing relevant provisions to fulfil the object sought to be achieved by the exercise undertaken by the Legislature. Although at the inception, among other grounds of eviction of a tenant under the special law enacted care was taken to contemplate eviction on the ground of "bona fide" requirement of the landlord, it was found that the provision needed special treatment and, therefore, special forum was provided for expeditious adjudication of the claim of the landlord to evict his tenant on the ground of his bona fide requirement of the premises for occupation as residence or for business for him or for any member of his family as specified in the relevant provisions. Cognizance was taken of the notorious fact that in Civil Courts procedural hassles result in final determination of such claim being inordinately delayed thereby defeating the purpose of those provisions

Chapter III-A requires the Rent Controlling Authority (vide Section 23-D) at whose forum application made u/s 23-A by the landlord is to be lodged, to "commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of granting of leave to the tenant to contest application". Section 23-E bars appeal against any order passed by the said authority under Chapter III A and provides instead a "revision" only directly to the High Court. Section 23-F restricts the duration of stay order which may be granted by the High Court against an eviction order passed by the Authority to "a total period of (not) more than six months". The provisions of (a) and (b) of Section 23-A are substantially in pari materia with those of clauses (e) and (f) of Section 12 (1). However, it may also be noted that the proviso of Section 23-A contemplates on the lines of Section 12 (4) that, "where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition."

For the view I have taken in this matter, reasons will follow hereinafter, but at this stage even, I would immediately observe that the doctrine of relation back" has no statutory sanction. That position has appeared to me undisputable. It is, indeed, for this reason, that I have taken care to examine some of the relevant provisions of Act meticulously to see if the Act affords to the doctrine any quarter. Neither Section 12 (4) nor any other provision inheres any strain of that doctrine. I confess that I have not been able to subscribe to the view that the uncodified procedural doctrine must prevail to defeat any substantive statutory right of any litigant. It is one of the cardinal principles of civil jurisprudence that procedures are handmaids of justice and it is equally also fundamental that no vested right can be claimed in respect of a procedural matter.

Principles of civil litigation are codified in India dealing with right of action of parties by prescribing the procedure for enforcement of any statutory or other right in a "suit of Civil nature" as contemplated in Section 3,4 and 9 CPC. Indeed, in terms of Section 4 (1), Courts in India are required to examine right of action of parties and it is to be noted that expressly excluded pro tanto from operation of CPC is "any special jurisdiction or power" conferred under any "special forum or procedure prescribed". Obviously, to any "suit filed" in any civil Court to enforce any right contemplated u/s 12 (1) of the Act, the procedure of CPC apply propria vigore in full force and only in respect of any "application submitted" to Rent Controlling Authority u/s 23-A, provision of CPC have no operation to the extent of derogation contemplated thereunder. It is necessary to comprehend in this context the implications of Section 11-A of Chapter III of the Act which contemplates that "the provisions of the Chapter so far as they relate to matters specially provided in Chapter III-A shall not apply to the landlord defined in Section 23-J". Rights and obligations created in Chapter III-A are invested in virtue of Section 11-A with immunity against impingement thereon resulting from the operation of any provision contained in Chapter III.

Joinder of "grounds" for the same relief or "eviction" of any tenant is expressly contemplated in Section 12 (1). As a result of Apex Court''s Seven-Judge Bench decision in V. Dhanapal Chettiar Vs. Yesodai Ammal, it has been authoritatively settled that "cause of action'''' for a landlord to evict his tenant arises only in terms of the "grounds" statutorily contemplated and the concept of contractual tenancy has vanished, the landlord''s right to recover possession from his tenant of the premises let out is enforceable in terms of his statutory entitlement and jurisdiction of the Court to pass order for tenant''s eviction is similarly regulated. The scheme of Section 12 inheres inbuilt limitations contemplated under sub sections (2) to (10), on Courts ''power, to deliver "possession" of the suit premises to the landlord even if the suit is decreed in landlord''s favour because, even after an "order" for tenant''s eviction is made under clause (e) or (f) of Section 12 (1), the landlord is not "entitled to obtain possession" of the suit premises because sub-section (5) and (6) mandate expiration thereafter of two months and in case of an order passed u/s 12(1) (f), compensation also paid to the tenant.

A transferee-landlord''s right to obtain "possession" of the suit premises to fulfil his own "bona fide" need in terms of clause (e) and (f) of Section 12 (1) is obviously not regulated thereby only, but also by sub-sections (4), (5) and (6). What is forbidden by Section 12 (4) is filing of a suit by a such landlord on the solo "ground" whether it relates to clause (e) or clause (f), making such a suit not "maintainable'', when that is "filed" without satisfying the condition-precedent of expiry of one year from the date of purchase of the suit premises Indeed, as contemplated under Order VII, Rule 11 (a), CPC, the plaint filed without satisfying the condition-precedent has to be returned by the Court in such a case for want of cause of action, Order VI, Rule 1, requires the plaintiff to specify the "relief" claimed, state "facts'' constituting the "cause of action" and establish further, by facts stated in the plaint, that the suit is not barred by any law. Obviously, in such a case, there will be no scope for amending the plaint and it cannot, therefore, be the purpose of Section 12 (4) to deal with transferee-landlord''s procedural right of amending the plaint, allunde, at any time, after or in the course of the trial of the suit. The view expressed in this Court''s Full Bench decision in Chhotelal Vs. Akbarali and Another, is to the same effect. Although Section 12 (4) was not interpreted in that case, it was held, however, that addition of a "new ground" in a such for eviction already filed is not forbidden by Section 12 (1).

To be more pracise and candid, right of a transfer-landlord of evicting his tenant on a ''ground" envisaged under clause (e) or (f) of Section 12 (sic) arises really in terms of Section 12 (4) because his cause of action cannot arise without the basic requirement contemplated therein being fulfilled of his completing one year''s waiting period. It will be a travesty of justice if he is held not entitled to continue the suit already filed on any other ground or grounds and claim the same relief of "eviction" on any additional "ground" specified in clause (e) or (f). If a fresh suit on one of those grounds after expiry of one year from the date of his purchase of the suit premises is maintainable during the pendency of the suit earlier filed on other ground or grounds, by what logic his right to add a "new ground" in the pending suit for the same relief of "eviction" can be negatived when the language of Section 12 (4) does not yield to that construction ? Provisions neither of Order VI, Rule 17, CPC nor of Order VII, Rule 8, bar his right to do so. To exercise the substantive right of evicting his tenant on expiry of one year from the date of his purchase on rhe ground of his bona fide need of the suit premises, procedural entitlement is contemplated in terms of Order VI, Rule 17 which enables a Court to entertain and allow prayer made for amending the plaint "for determining the real question in controversy between the parties" (emphasis added) which would be the question indeed of landlord''s obtaining possession of suit premises in terms of sub-sections (5) and (6) of Section 12.

The imperative underlying Sect on 12 (4) is only that on the date of making the "order" of eviction, Court must be satisfied that a transferee-landlord has completed one year''s waiting period contemplated u/s 12 (4) and he is entitled to have an "order" from the Court which may be enforced in terms of sub-sections (5) or (6) of Section 12 to "obtain possession" of the suit premises from his tenant. That really is the purport of Section 12 (4) and that plain legislative intendment cannot be frustrated by importing consideration of any extra-statutory theory of equitable content from the realm of uncodified procedural jurisprudence. If it was the intention of the Legislature to lake away, by enacting Section 12 (4), transferee-landlord''s right, contemplated under Order VI, Rule 17, CPC to amend his plaint of the pending suit, that intention could have been expressed in terms of appropriate legal fiction by incorporating the equitable concept of "relation back" statutory; but that has not been done. Power and jurisdiction to allow pleading to be amended is exercisable at "any stage of the proceedings" and discretion is vested in the Court to expressly do so "on such terms as may be just". If Legislature''s intention was to take away the discretion and in its wisdom it thought it would not be "just" for the amendment to be made effective from the date of the order, or if it thought that institution of a fresh suit should be the condition-precedent for exercise by the transferee-landlord of his right to evict a tenant u/s 12 (4), that position could have been made clear by use of a non-obstante clause to tear off the right contemplated u/s 12 (4) from its mooring provided by Section 12 (1) and clauses (e) and (f) thereof But, that has not been done.

Apex Court''s decision in B. Banerjee Vs. Smt. Anita Pan, has indeed a direct bearing on the instant controversy. A similar provision of a similar ''Rent Act" of West Bengal was construed not only with reference to its language and setting, but also to its object The question of vires of an Amending Act was challenged on, among the ground, inter alia, of restrospectivity, but speaking on the object of the relevant provision, their Lordships observed, "the purpose of the law is to interdict for a brief spell of three years (unlike one year under M. P. Act), institution of suits on grounds (f) and (ff) of Section 3-A of the amended Act" which were relatable to the bona fide need of the transferee-landlord, for personal use and occupation and also for rebuilding, the provision, they held, was meant to "disenchant speculative purchases and provide occupants time to seek alternative housing". High Court''s decision striking down the retrospectivity clause was reversed with the avowed object of saving the tenant from "litigative waste" observing that "social justice and substance of the matter find fulfilment when fresh pleadings are put in subject to the three year interval......" and that could be done even at the appellate stage Obviously, institution of a fresh suit was ruled out to pre-empt "litigative waste" and no statutory sanction was also found for such a course

In the later decision, Rameshwar and Others Vs. Jot Ram and Another, a different point arose concerning the construction of a different provision of a different Statute but in that case also notwithstanding the equal concern for the "cherished reform" and the salutory rule of "processual equity", the later was denied operation to sabotage the reform. On a "plain reading" of relevant Section 18 of Punjab Security of Land Tenure Act, it was held that "once the deposit is made, the title to the land vests in the tenant" on the footing that "rights of parties are determined on the day when they came to force". (Emphasis added). The significant feature of the holding is its emphasis on the event of statutory moment of the birth of the substantive right of ownership and its indefeasibility. Right of ownership acquired by tenants got vested in them and judicially that was immunised against the "subsequent event" of the "large" land-owners'' death during pendency of the appeal. His successors had become "small" land holders and under law they could resist tenant''s claim but judicial care was taken that the aggrarian reform was not sabotaged. Dealing with the concept of "subsequent exent", their Lordships held that its impact on the pending action was determinable by several considerations, such as, "whether right to remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted; the Court, even in appeal, can take note of such supervining facts with fundamental impact". (Emphasis added). The decision in Pasupuleti Venkateswarlu Vs. The Motor and General Traders, was referred to and it was observed : " Where cause of action is deficient, but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit the amendment and continue the proceeding provided no prejudice is caused to the other side". Approving Privy Council''s dictum in Chokalingam Chetty 54 Mad. LJ 88 it was held that rights vested by virtue of a statute cannot be defeated by any equitable doctrine. Judicial cognizance of "post-natal" events is to be tampered by the consideration that "by its own manipulations a change in situation" is not obtained by the party to plead for relief "on the altered basis".

Reference is also made by my learned Brothers in their orders to two other decisions in Hasmat Rai and Another Vs. Raghunath Prasad, and Gulabbai Vs. Nalin Narsi Vohra and others, which are to be examined now. In the first case, this Court''s decision was reversed in appeal finding unwarranted this Court''s reluctance to apply the law laid down in P. Venkateswarlu (supra). In the Second Appeal this Court had rejected the tenant''s plea for consideration of landlord disentitlement to the decree for eviction due to subsequent event, in terms of clause (f) of Section 12(1). It was contended that during the pendency of the Second Appeal, the landlord had obtained possession of "other reasonably suitable non-residential accommodation of his own" and his need was thereby satisfied that was upheld by the Apex Court in allowing the appeal. There was no occasion for Court to expound the scope of Section 12 (4) and determine rights and obligations contemplated thereunder of the landlord and tenant. In Gulabbai, rendered on the provision of Section 13 (i) (a), Bombay Rent Hotel and Lodging House Rates Control Act, Hasmat Rai''s and P. Venkateswarlu (supra) were found handy precedents and to the later decision rendered in the case of Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, the Court also referred. High Court''s judgment was upheld, rendered on the basis of additional evidence adduced under Order XLI, rule 27, CPC of the landlord''s need vanishing on construction of a bungalow and his residing therein during the pendency of the lis in the High Court.

The subsequent event of acquisition of a new "ground" of eviction by the transferee-landlord u/s 12 (4) during pendency of his suit is, in terms of decision in Rameshwar''s case (supra), an event of creation of a new right. On vesting of that right in the plaintiff in virtue of Section 11-A, the change in situation acquires other bearings as well. This may be demonstrated with the help of a hypothetical case of a widow and a physically handicapped person, specified in Section 23-J. If such natural calamity as loss of husband by a women or of a limb by man or woman visits the plaintiff who is a transferee-landlord, during the pendency of his/her suit filed on one or more other "ground" and the event occurs after plaintiff''s completion of one year''s waiting period, he or she gets a vested right to submit application u/s 23-A, but why such a plaintiff be required to make a fresh application and be incompetent to get the plaint amended. It should be possible for trial of the claim of such a plaintiff to proceed at the new forum on amended plaint when that is returned under Order VII, rule 10-A, CPC or when an order is passed by High Court u/s 24, CPC transferring the case to the Rent Controlling Authority for trial Otherwise, the primacy accorded u/s 11-A to rights of such a plaintiff may lose its potency. Indeed, de novo "application" and its trial de novo would ensure only to tenant''s benefit, fortuitously acquired and not statutorily contemplated. On the other hand, deprivation of the benefit of the continuity of the trial at Rent Controlling Authority''s forum will manifest frustration of the object of Section 11-A and Chapter III-A. Courts always take notice of the legislative history of the mendatory enactment and its total effect to discern the object it is meant to fulfil and the amended provisions are accordingly construed. To construe Section 12 (4), it would be legitimate to abide by this imperative.

On a proper construction of Section 12 (4) in the backdrop of the legislative history and on its language and setting in the context of its object, I reiterate, transferee-landlord''s right of action to enforce his substantive right "defeated" thereunder like his substantive right of eviction, cannot be defeated by importing the equitable concept of "relation back" and denying him the right to amend his plaint in a suit earlier instituted when the situation changes naturally and not owing to his manipulation. Time and fide are natural phenomena impervious to human "manipulation". As soon as the period of one year elapses of the transferee-landlord''s requiring the suit premises, he becomes entitled in terms of sub-section (4) of Section 12 to seek eviction of his tenant to fulfil his bonafide need, namely, on the "ground" specified in clause (e) or clause (f) of sub section (1). Referential incorporation of a statutory provision is a well-recognised drafting technique and its implications are well known. The "referred" provision becomes part of the ''incorporating'' provision. On amendment prayed being allowed to add in the plaint the claim to the "relief" of eviction on the "ground" specified in clause (e) or clause (f) no prejudice is caused to the tenant/defendant He his not taken by surprise To the birth of new right be cannot protect and raise defence in that regard When the transferee-landlord files the suit in terms of Section 12 (1) for his eviction, he mentions the date of his acquisition of the suit premises and cognizance of the lapse of time is taken by the Court to effectuate the judicial mandate. There is no compulsion in the language of any part of Section 12 or in any other provision of the Act as makes the landlord liable to institute a fresh suit on the expiry of one year''s period contemplated u/s 12 (4) and disables him to continue the suit already filed to claim in that suit the relief of tenant''s eviction on an additional "ground" or cause of action, statutorily contemplated. The Tenant cannot claim any vested right in procedure and be a party to a "litigative waste" by raising the defence that to obtain relief on additional ground the landlord must file a fresh suit and suffer the travail of another round of litigation when at the appellate stage itself in any Court he becomes entitled to that relief in terms of his vested substantive right. Relevance in this context of the impact of Section 11-A and 23-J discussed in the last para is to be stressed once again. Section 12 (4) is to be so construed as to promote effectively and not restrict operation of Order VII, rule 17, CPC so that its real object is duly fulfilled. Court cannot ignore the legislative care for landlord''s "bona fide'''' need of the tenanted accommodation for his own use and occupation because right to shelter and livelihood is a Constitutional right contemplated under Article 21 See, in this connection, Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, Sodan Singh AIR 1989 SC 1989. Legislature''s balancing exercise between competing rights is amply manifested in Section 12 (4) which contemplates waiting period to benefit simultaneously the tenant and the landlord reasonably and equitably.

Privy Council''s decision in Ma Shwe Mya v. Mating Mo Hnaung AIR 1922 PC 249, is cited by respondent''s counsel, Shri Ramji Sharma, vocalising the proposition on which I have focussed light in dealing with this controversy. A new case could not be set up by way of amendment but "to secure to the proper administration of justice", their Lordships observed, rules of Courts "should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised" provided, however, one distinct cause of action could not be substituted for another. Other decisions which he has cited also support the view I have taken.

In Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) by Lrs., plea taken by tenant denying landlord''s title for eviction was held to constitute a ground for his eviction and for enforcing the right in that regard, separate proceeding was not necessary. In the same suit, the relief of eviction could be obtained by amending the plaint and indeed, omission of landlord to do so was also held as not fatal to landlord''s claim if the trial proceeded on that basis with full knowledge of parties. In Laxmi and Co. Vs. Dr. Anant R. Deshpande and Another, the general principle was stated that Court can take notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice. My attention is also rivetted by Shri Sharma on para 29 of the Report in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, to the dictum pronounced there that when during the course of trial, the law changes affecting the rights of the parties, Courts may allow an amendment pleading the changed circumstances to avoid circuity of action and grant relief on the basis of the new cause of action pleaded. That was a case under Specific Relief Act. In another case, Babulal AIR 1982 SC 2818, relief was also claimed on the basis of the said Act and the same view was expressed in that case also.

Appellant''s counsel, Shri Naik, has supposed the view taken by Dubey, J. and relied on the decisions cited in his order However, he has also cited further. Nand Kishore Marwah and Others Vs. Samundri Devi, But on facts, that is distinguishable. A different provision of a different enactment was construed and it is difficult to equate the provision construed in that case with Section 12 (4) because that was not a case of a transferee-landlord and nor indeed, of his bona fide need Mohinder Kumar and Others Vs. State of Haryana and Another, is also distinguishable for the same reason. Indeed, in that case vires of the relevant provision was challenged, but without success, though it may be stated still that similar provision was construed in that case concerning inapplicability of the Act for the period specified in respect of houses constructed and tenanted during the period. Legislature''s power to fix the exemption period was held indisputable. Ramesh Chandra''s AIR 1992 SCW 991 case is a decision rendered on the same question on a similar provision; that related to suit for eviction filed prior to completion of ten years'' exemption period. That too is obviously distinguishable, for the same reasons.

Now, those decisions of this Court are to be reviewed which form the case of controversy in this case. Banwarilal Trilokchand (supra) may be dealt with briefly first because that decision agrees with my view having held that during pendency of a suit instituted on other grounds, transferee-landlord can not be denied the right to amend his plaint and claim relief of eviction on the grounds contemplated under clauses (e) and (f) of Section 12 (1) of the Act It is a short decision and no reasons are given; there is no consideration of the purport and object of Section 12 (4), but the view taken is the correct view for the detailed reasons which I have already given above. The other line of decisions which created problem for the Referring Judge are twosome, Deenanath and E. V. Subbarao (both supra) rendered by two other learned Judges of this Court separately.

In Deenanath''s case, there is reference in the head note only to the provisions of CPC (Order VI, rule 17 and Order VII, rule 7) along subsections (1) and (4) of Section 12 of the Act, but discussion in the judgment is only on the latter provision. Although reference is made to the decision in B. Banerjee''s case (supra), the holding thereof was found inapplicable merely because another Single Judge in Hari Singh (supra) said so. Indeed, summarily, it was also held "it could not be disputed that in case the proposed amendment was allowed it would take effect from the date of the suit". The other case, E V. Subbarao was decided by the same learned Judge, G.L. Oza, J. (as he then was) on the lines of Hari Singh, cited in Deenanath. After dealing with B. Banerjee''s case he expressed the view that Section 12 (4) was susceptible to the general concept of "relation back" and that B Banerjee''s case was concerned with the effect of an Amending Act and, therefore, it had no direct bearing on the interpretation of Seetion 12 (4). In Hari Singh is extracted B. Banerjee''s dictum, at para 13 of the Report-", not to be ritualistic in insisting that a return of the plaint and re-presentation thereof incorporating amendments is the sacred requirement of law"; that should have carried weight with the Court. Unfortunately, even no notice was taken in Harisingh of exposition of the rationale of the "waiting period" contemplated in the similar provision construed in B. Banerjee. In all the three decisions-Deenanath, Harisingh and Subbarao, the signature tune of & Banerjee was regrettably missed; innocently the general concept of "relation back", carefully negatived by Apex Court, came to be insinuated in Section 12 (4) without its implications affecting rights of parties governed by Special Law being analysed.

Khumansingh''s decision, though also rendered on Section 12 (4), dealing with the question of amendment and holding that impermissible, relied simply on Deenanath and the Full Bench decision in Chhotelal. It is obviously of the same pattern. There is a mere reference to these decisions and there is no discussion of the statutory provision. In the short order passed in Chandbai the holding is based on the construction of the expressions maintainability" and "filing of the suit" and on the distinction between the two. There was no occasion for the Court to construe the impart of any provision of CPC on sub-section (1) and (4) of Section 12 of the Act. No amendment was prayed or allowed and, indeed, at para 22 of the Report, that crucial question was deliberately left open very carefully. This decision obviously, therefore, has no impact on the controversy mooted in this Reference and it is of a different category.

Without any hesitation, I reiterate once again, that the scope and purport of Section 12(4) has so far eluded careful analysis Not only its language and setting but its object as well that of the amendatory exercise of the legislature attaching significance to the "ground" of landlord''s "bona need and bestowing on it special attention, have a compelling message and it would be an act of Constitutional soantage if it is ignored. Plaintiff/landlord can be non-suited u/s 12 (4) on two conditions : if he has not completed one year''s waiting period and if he has no "bona fide" need of the suit premises which could be established obviously the course of trial The Court is bound to obey the legislative mandate and allow the plaintiff to amend his plaint of the pending suit to enforce his statutory right contemplated u/s 12 (4), but it shall have jurisdiction still to pass appropriate order specifying "terms" for trial of the new plea. Indeed, the amendment would not result in the suit being ipso facto decreed. It will be plaintiff''s burden still to establish that his need was "bona fide" and in the course of trial he would be required also to satisfy the requirements contemplated under clause (e) and (f) of Section 12 (1). Indeed, as held in B. Banerjee., even at the earlier stage, such "new pleadings" can be put in. Hasmat Rai''s ease and other decisions of that category also emphasized the judicial duty to adjudicate the rights and obligations created under "Rent Acts" by any subsequent event without considering whom it benefits. Both landlord and tenant are entitled to plead "subsequent event" in the pending lis, which terminates only when "possession" is delivered or refused to the landlord under the decree/order passed in that regard. Lachhobai Rathoie1, rendered on Section 12(1) (a) for the first time focussed on this aspect in refusing "possession" to landlord in the execution proceedings on tenant''s paying the arrear rent and purging the statutory default. A lis of this type is a moving an impact panorama. If it is fossilized judicially at its birth by "relation back", the social objective to which the Act caters would get frustrated.

Having discussed the decisions cited at the Bar and referred in their Orders by my learned Brothers S. K. Dubey and R. C. Lahoti, JJ., and given anxious consideration to the different aspects of the controversy mooted in this Reference, I have reached carefully after due deliberation the conclusion that Banwarilal Trilokchand was correctly decided. I am also of the considered opinion that the view to the contrary, expressed in Harisingh, E V. Subbaroa and Deenanath, is not correct; and that Section 12 (4) of the Act, has not been properly construed in those decisions. Similarly, Khumgnsingh''s case has not been correctly decided in so far as it concerns the interpretation of Section 12 (4) of the Act. Chandbai was decided on its own facts and in that case, very carefully and appropriately, the question of amendment which did not arise in the case, was kept open.

The matter shall now go before the learned Referring Judge for final disposal of the appeal.