Sri Naren Saha vs Smt. Sukhoda Bala Saha

Prasenjit Mandal, J.—This application is at the instance of the plaintiff/respondent and is directed against the Order No. 20 dated April 17, 2012 passed by the learned Additional District Judge, 2nd Court, Howrah in Title Appeal No. 127 of 2009 thereby allowing an application for amendment of the written statement. In the suit for ejectment and recovery of possession of the suit premises against a tenant, the landlord/plaintiff got a decree of ejectment, an appeal was preferred by the tenant. In that appeal, the appellant filed an application for amendment of the written statement contending, inter alia, that the plaintiff''s requirement has been satisfied on getting possession of a premises from another tenant and such fact is to be incorporated in the written statement. That prayer for amendment of the written statement was allowed by the First Appellate Court. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Having heard the learned Advocates of both the sides and on perusal of the materials-on-record, I find that the aforesaid suit being Title Suit No. 144 of 2005 was instituted by the landlord on the ground, inter alia, of reasonable requirement.

The defendant/appellant contested the said suit by filing a written statement.

Then, on the basis of the evidence on record, the learned Trial Judge decreed the suit. An appeal being Title Appeal No. 127 of 2009 was preferred by the defendant/tenant and in that appeal, the said application for amendment of the written statement was allowed.

It is the specific case of the defendant/opposite party herein that during the pendency of the dispute between the parties on August 29, 2011, Faruk Mullick and Manisuddin Sarkar, two tenants delivered possession of their premises in favour of the plaintiff and since then, the plaintiff has been possessing the said rooms without any interruption.

Mr. Haradhan Banerjee, learned Advocate appearing for the petitioner, has contended that the said rooms have been declared to be in the possession of those tenants as per report of the Commissioner held earlier. Anyway, the Commission was held earlier and the opposite party has stated that on a particular date, i.e., August 29, 2011, the said two tenants had vacated their tenanted portions and so, the plaintiff''s accommodation remains satisfied.

Mr. Banerjee has also contended that the premises of those two tenants are of shop rooms and the landlord cannot be directed to stay in the shop room and as such, the said application has been filed with sinister motive and to drag the matter.

Mr. Banerjee has also contended that on perusal of the accommodation and the observation of the learned Trial Judge as appearing in inner Page No. 27 of the judgment delivered by the learned Trial Judge, it will appear that if those rooms are taken into consideration yet, the plaintiff''s total accommodation will not be fulfilled.

With due respect to Mr. Banerjee, I am of the view that these are on the merits of the application as well as the suit and those facts may be considered if the proposed amendment is allowed. At present, the defendant has wanted to incorporate the subsequent fact, after passing of the decree, in his written statement. Such subsequent fact may be incorporated in the written statement in consideration of the reliefs sought for in the plaint.

Mr. Banerjee has also referred to the decision of Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, particularly the Paragraph No. s 16 and 18 and thus, he has submitted that all amendments that may be necessary for determining the real question in controversy between the parties, may be allowed provided they do not cause injustice or prejudice to the other side.

"In the instant case, after the legal battle for a long period, this amendment, if allowed, will cause injustice or prejudice to the landlord and as such, the learned First Appellate Court was not justified in allowing the application for amendment", submitted by Mr. Banerjee.

Mr. Banerjee has also referred to the decision of Pratap Rai Tanwani and Another Vs. Uttam Chand and Another, particularly the Paragraph No. s 7 and 8 and thus, he has submitted that when a suit is going on for a long period, several complications may arise and the object of filing of the suit, particularly on the ground of reasonable requirement, would be frustrated, if such application for amendment of the written statement is allowed.

With due respect to Mr. Banerjee, I am of the view that the decisions cited by him are of general principles.

On the other hand, Mr. D.P. Mukherjee, learned Advocate appearing on behalf of the opposite party, has referred to the decision of Hasmat Rai and Another Vs. Raghunath Prasad, and thus, he has submitted that an appeal being a continuation of the suit, the landlord''s need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the Appellate Court has to examine, evaluate and adjudicate the same. Otherwise, the landlord would derive an unfair advantage.

Having heard the submissions of the learned Advocates of both the sides and on consideration of the materials-on-record and the above decisions, I am of the view that the decision of Hasmat Rai & anr. (supra) will be applicable in the instant case and as such, the learned First Appellate Court was right in allowing the application for amendment of the written statement. He has rightly allowed the said application.

Accordingly, there is no scope of interference with the impugned order.

This application is, therefore, dismissed.

Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.