Rajesh Kumar Sharma @ Rajesh Sharma and Another vs Rabindra Kumar Bansal and Others

Ajit Kumar Sinha, J.—The present writ petition has been preferred for the following relief:

(a) In the nature of certiorari for quashing the order dated 22.9.2007 passed by the learned Additional Munsif, Dhanbad in T.(E) S. No. 55 of 2005 in terms of which a petition under Order VI Rule 17 filed on behalf of the petitioners has been rejected.

(b) Upon quashing the order dated 22.9.2007 be further pleased to direct the learned court below to proceed in accordance with law.

The main contention raised by the learned Counsel for the petitioner is that the learned Court below failed to exercise its jurisdiction vested in law and misconstrued the provision of Order VI Rule 17 C.P.C. He further refers to and relied upon Section 11 of the Bihar Building (Lease Rent and Eviction) Control Act, 1982 to support his contention about the ground of eviction.

Learned Counsel for the respondents submits that the prayer is unsustainable since it was not raised at the time of filing of suit and the cause of action is subsequent and thus it changes the nature of plaint/suit. He also submits that the remedy is available for recovery of the amount or rent arrears which is provided in the act itself.

I have considered the pleading and rival submission. The ground of eviction is provided u/s 11 of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 which provides for several grounds on which eviction suit can be filed and it includes breach of condition of tenancy, bonafide requirement, alteration and/or deterioration of building, subletting and default in payment of rent for period for two months, etc.

The petitioner preferred the eviction suit initially on the ground of breach of condition of tenancy and also for bonafide requirement. During the pendency of the suit for eviction the respondent defaulted making the payment of rent which exceeded the period prescribed for two months and that led to filing Order VI Rule 17 application to add the additional ground for eviction as provided u/s 11 of the Act. The finding of the learned Additional Munsif, Dhanbad that it will change the nature of suit itself appears to be erroneous. Order VI Rule 17 of C.P.C. permits amendment if the nature of the suit is not changed and if the evidence not concluded.

This issue has been considered in 1984 PLJR Page 395 and it has been specifically held at paragraph 12 and 13 which is as under:

As already mentioned above, in the instant case the plaintiffs-petitioners have asked for eviction of the tenant (defendant No. 1) on two grounds, viz. on the ground of Sub-letting by him to defendant No. 2 and on the ground that defendant No. 1 (the tenant) had not paid a single paise towards rent till the filing of the suit. The question arises, if during the pendency of the suit another ground has become available to the landlord, can the landlord not be allowed to inform the court of the subsequent event and press into service this additional ground for eviction of the tenant ? It is well-settled and well recognized principles that in order to shorten the litigation, to preserve the rights of both the parties and to subserve the ends of justice; the court can and should take into consideration the subsequent events and adjudicate the rights of the parties and grant relief available to them. Reference may be made to the case of Ranvijaya Shahi Vs. Bala Prasad Motani, Abnash Kaur Vs. Avinash Nayyar and Others, ; Tarakpada Kirti Vs. Ruplekha Chatterjee, and Prem Lal Vs. Jadav Chand and Another, .

The existence of one or more of the grounds mentioned in the Act for eviction of the tenant does not constitute a necessary part of the cause of action in a suit for eviction of the tenant. A cause of action in a suit under the Act for eviction of the tenant is certainly as accrual of a disability against the tenant pertaining to the grounds mentioned for eviction due to his conduct or laches, thus disentitling the tenant from the protection against his eviction. There is nothing which debars a court from permitting the introduction of a cause of action arising subsequent to the filing of the suit by way of amendment so long as the defendant has an opportunity of meeting the new case by amendment of his written statement and by leading evidence in support of his defence, if any. The Act forbids the court from passing a decree or order of eviction which is de-hors the Act. The existence of one or more of the grounds for eviction mentioned in the Act is a sine qua non to the exercise of jurisdiction by the court.

Be that as it may the reasoning assigned by the Court below is on the face of it erroneous and unsustainable in the eyes of law more so when the landlord is entitled to maintain the suit for eviction on any of the ground stipulated u/s 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982.

Considering the aforesaid facts and circumstances of the case, the impugned order is set aside and this writ petition is accordingly allowed.