Rameshwar Dutt and others vs Ram Kishan

Dua, J.—It was stated at the bar that the facts relating co this case are correctly given in Dass v. Rameshwar Datt, 1961 Lah LT 18 (Revenue Killings).

Rameshwar Datt and others Petitioners in this Court sought ejectment of some of their tenants for failure to pay arrears of rent due from them. Eviction applications were made to the Asstt. Collector II Grade (Tahsildar) Ambala who had jurisdiction to entertain them. On 8th May, 1959, he issued notices and fixed the cases for 6th June 1959. The tenants appeared and put in written statements. On 25th September, 1959 the tenants compromised with their landowners and undertook to pay them certain amount as arrears by 9th November 1959. It may be mentioned that on 25th September, 1959 the territor al circles of the Tehsildar and the Naib Tehsildar had been exchanged. The tenants defaulted on 25th November, 1959 and the landowners applied for their ejectment. On 25th November, 1959 the order of ejectment was passed by the Asstt. Collector II Grade (Naib Tahsildar) Arabala ; no objection having been taken by the tenants to his jurisdiction. They, however, appealed to the Collector which was rejected on 26th February, 1960 ; on appeal too no objection regarding jurisdiction was raised. On further revision to the Commissioner for the first time it was contended that the Assistant Collector was not competent to pass the order on account of the arrears claimed being in excess of his pecuniary jurisdiction. The Commissioner recommended the case observing that the order of the Asstt. Collector was a nullity. The learned Financial Commissioner, however, did not agree with the learned Commissiorer that the order of the Assistant Collector was a nullity making all the jurisdiction void ab initio. The tenants having acquit seed in the jurisdiction of the Assistant Collector the Financial Commissioner declined to interfere and maintained the orders passed by the Collector and the Assistant Collector.

Against this the matter was brought to this Court under Article 227 of the Constitution but a learned Single Judge of this Court declined to interfere holding that the objection regarding the pecuniary jurisdiction can not be allowed to be taken up at revisional stage unless there has been a prejudice or failure of justice on the merits, which apparently was not the case before him.

In execution of the warrant for delivery of possession it is claimed by the present Petitioners that the Respondent was evicted from the land in dispute and the Petitioners were put in possession of the same on 8th January, 1960. From that date the relationship of landlord and tenant between the parties ceased. Sometime subsequent to that date, the Respondent is stated to have trespassed on the land in dispute and again taken forcible possession thereof from the Petitioners with the result that they were obliged to file a suit for possession of the land in the Court of the Senior Subordinate Judge, Ambala. It is in this litigation that a prayer for amendment of the written statement was made by the Defendant and allowed by the Court below which is a subject-matter of the present revision petitions.

In paragraph 4 of both the revisions (Civil Revision Nos. 439 and 441 of 1963) it is asserted that in paragraph 8 of the original written statement dated 6th November, 1962 filed by the Respondent though it was admitted that the order of ejectment bad been executed a fresh agreement of tenancy between the parties was set up for creating a fresh relationship of landlord and tenant. This part of the plea has been reproduced in paragraph 4 of the grounds of revision. On the basis of the pleadings issues were framed and evidence led and the case was fixed for 25th April 1963 for the statement of the Plaintiff as his own witness and for arguments. On that date the statement of Rama Nand Plaintiff was recorded and the case fixed for argument* for 26th April, 1963. On the last mentioned date it was adjourned to 10th May, 1963 for arguments and again adjourned to 21st May, 1963 for the same purpose. These are the facts asserted in the grounds of revision in both the cases and have not been controverted before me. On 21st May, 1963 the Respondent applied for amendment of the written statement. The relevant portion of this application is reproduced in paragraph 7 of the grounds of revision. Here it is pleaded that the Defendant never knew about the proceedings for delivery of possession and was not evicted from the land in dispute. That portion of paragraph 8 of the written statement in which execution of the order of ejectment is mentioned was stated to have been pleaded by mistake and it was sought to be substituted by the plea that there was no end of the relationship of landlord and tenant between the parties as the order of the Assistant Collector was without jurisdiction, he having no power in law to pass the order in question. This prayer was resisted by the landlords and the learned Subordinate Judge passed a three line order in the following words:-

Both the applications for the amendment are allowed on payment of Rs. 10/- as costs for each application. Amended written statements be put in on 16th June 1963

It is this order which is impugned before me and it is submitted that it virtually amounts to making nut a new case for the Defendant and, therefore, the Court below has acted with illegality and material irregularity in permitting the amendment in question at this late stage.

The Respondent''s counsel has contested this petition with great eloquence and has drawn my attention to P.S. Kaicker v. Union of India (1961) 63 P.L.R 516, where I had to deal with the scope and effect of Order VI, Rule 17 Code of Civil Procedure. After noticing certain decisions of the Privy Council, the Supreme Court and other courts, both Indian and English, I observed that an amendment can be allowed at any stage of the proceedings and all such amendments must be allowed if they are necessary for the purposes of determining the real questions in controversy between the parties and where a litigant does not act mala fide or has not by his blunder done some injury to his opponent which is not capable of being compensated tor by costs or otherwise, the amendment should, in the interest of justice, be allowed provided it is necessary for the purpose of adjudicating upon the real controversy between the contestants ; and this is so notwithstanding the negligent or careless omission in the first instance. Relying on this passage the Respondent''s learned Counsel has submitted that amendment in the case in hand must be allowed because the real controversy between the parties is whether or not on the date of the suit the Defendant was the Plaintiffs'' tenant. Reference has also been made to a decision of Harnam Singh, J. in S. Man Singh v. Rulia AIR 1960 E.P. 363, where it has been observed that a party can be allowed to plead by way of amendment an allegation of fact inconsistent with the previous pleadings of that party. There, in a suit for possession of land it was alleged that the property had devolved on the Plaintiffs on the death of K. widow of S, the last male holder. An amendment alleging that on the death of S the property had devolved on R, his son, and that on R''s death the suit property devolved on R''s mother K was held to fall within Order 6, Rule 17 and the order allowing such an amendment was upheld by the learned Judge. After considering the facts of the case the learned Judge came to the basic conclusion that the amendment was necessary for the purpose of determining the real question in controversy between the parties. Reference was next made to a Full Bench decision in Union of India v. Jagdish Singh ILR 1961 P&H. 369, but I am unable to find any useful assistance for the Respondent''s contention in this case. Finally reference was made to a Supreme Court decision in P.H. Patil v. K.S. Patil AIR 1957 S.C. 883, As a matter of fact the Petitioner''s counsel also relied on the ratio decidendi of this case. According to this decision also two conditions have to be satisfied for allowing amendments: (a) it does not work injustice to the other side and (b) it is necessary for the purpose of determining the real question in controversy between the parties.

Now what is the real question in controversy between the parties before me ? The Respondent says that it is whether or not he was a tenant on the date when he is sought to be evicted, whereas the Petitioners submit that the real question is whether there is a fresh agreement of tenancy between the parties after the delivery of possession to the Petitioners If the case were to be looked at without the background and the past history then perhaps the Respondent may have to say something in support of his contention ; but looking at the entire history of the controversy and the previous litigation the real question jailing for determination on the original pleadings of the parties is as suggested by the Petitioners'' counsel. The amendment sought would really begin a fresh challenge to the pretitioners'' right apparently settled after a proper contest by putting forth an entirly new case, as indeed it would amount to an attempt to change the very question in controversy between the parties. This, in my opinion, cannot be permitted on the facts and circumstances of this case.

The Court below also seems to have failed, so far as is possible to discern from its order, to have applied its judicial mind to the matter before it and no real exercise of judicial discretion can be spelled out from the impugned order which prima facie gives an impression of arbitrariness. Now if that be the position, the impugned order must be held liable to be quashed.

For the reasons foregoing, this revision succeeds and allowing the same I set aside the impugned order. The suit should now be tried on the original unamended pleadings. The parties should appear in the Court below on 7th October, 1963 when another short date would be given for further proceedings in accordance with law and in the light of the observations made above. In the peculiar circumstances of the case, there would be no order as to costs in this Court.