Uday Chand Daw vs Dinabandhu Pal (since deceased) represented by LRs Smt. Chandana Pal & Ors.

The revisional application under Article 227 of the Constitution of India has been directed against Order No.11 dated July 5, 2016 passed by learned Civil Judge (Jr. Division), 2nd Court, Hooghly Sadar in Title Suit No.9978 of 2014.

Mr Chakraborty appearing for the petitioner submitted that the order impugned allowing the amendment sought for by the opposite parties-defendants in the eviction suit resiling from earlier admission has been illegally allowed by learned trial court which is required to be set aside by allowing the revisional application, so that the eviction suit as filed under the provisions of the Transfer of Property Act may be proceeded with for its disposal in accordance with law.

Mr Ghosh representing the opposite parties-defendants, per contra, submitted that the proposed amendment was rightly allowed by learned trial court, since the same was clarificatory in nature to the defence as already asserted in para.10 of the written statement, and therefore, the order impugned should not be interfered with. Mr Ghosh submitted, on instructions, that the entire suit premises lying in occupation of the opposite parties does not belong to the petitioner-plaintiff, and that the opposite parties have been occupying major portion of the land belonging to PWD by encircling also the portion of the suit premises by raising construction and structure.

Taking note of such desperate submission as defence, the opposite parties, as it stands, are wrong doers being in the enjoyment of the land belonging to PWD by raising structure. Be that as it may, the same is not the subject matter of the instant suit.

Now, before appreciating the proposed amendment application filed by the defendant before learned trial court, relevant portion of para.10 of the written statement is set out:- ".........Be it stated here that originally the father of the defendant was a tenant in respect of the Suit premises under the father of the plaintiff at a Monthly rent of Rs.15/- and in the year 1975, the rented room being a Gumti, was broken down and at the request of the father of the plaintiff, the father the defendant made the said room a fresh out of his own fund with a condition that money spent for the same, be paid after deducting from the Monthly rent was frixed at Rs.31/- and the father of the defendant accordingly after deducting Rs.15/- used to pay the said Monthly rent to the father of the plaintiff. The father of the plaintiff died in the year-1984/85 and after the death of father of the plaintiff, his brother Ashoke Daw used to take Monthly rent and subsequently the plaintiff got the Suit property on partition and the father of the defendant used to pay rent to the plaintiff at the Monthly rent of Rs.31/-. After the death of the defendant in the year 1992, the plaintiff demanded Monthly rent from the defendant at the rate of Rs.51/- and the defendant agreed to pay the same having no other alternatives......"

It is redundant to mention that for determining an eviction suit within the ambit of the provisions laid down under the Transfer of Property Act, the following elements are necessary: a) establishment of relationship of landlord and tenant whether there is a document of agreement or not; b) establishing the fact of remaining in occupation of the premises in question by the tenant; and c) whether the said relationship, if exists, has been terminated.

In view of the above assertions the opposite parties have already stated original relationship between landlord and tenant between the predecessors of the parties. The opposite parties already in the written statement have asserted about raising constructions covering the alleged footpath belonging to PWD. Though during course of argument learned counsel for the petitioner raised no grievance so far as the first paragraph of the schedule of amendment, but vehemently opposed as against the rest text. Amongst the rest text of the schedule of amendment as allowed by learned trial court it was asserted that neither the father of the defendants nor the defendants are the tenant in the suit property and no lease agreement has been executed in between plaintiff and defendants. Defendants are the occupier of the suit property since the time of their father and as per request of the father of the defendants? father paid Rs.15/- per month to the father of the plaintiff and after that, defendants paid Rs.31/- per month and at present Rs.51/- per month has been paid by the defendants as a mere honorarium to the plaintiff and that cannot be treated as rent. Be it also mentioned that electric connection in the suit property was in the name the father of the original defendant, Late Shahdeb Pal.

The rest other part of the proposed amendment application regarding denial against sole ownership of the petitioner-plaintiff and asserting about ownership of PWD.

Law is set at rest that even at any stage of the proceeding subject to approval of the court the prayer to amend the plaint or written statement may be allowed, if the text is really necessary to bring out real controversy in issue without rendering irreparable injustice to the other side. This court on and again has held that the term "interest of justice" cannot be decided as one-sided game. If by earlier act or conduct on record any valid right has accrued in favour of the other side, then by any subsequent attempt the said right should not be allowed to be brushed aside in the name of allowing any prayer in the interest of justice. Therefore, in view of the assertions as already quoted above from para.10 of the written statement which, of course, is subject to adjudication by learned trial court, the subsequent act by denying the aforesaid assertions as quoted above tantamounts to withdrawal of earlier assertions by which at least relationship of landlord and tenant in respect of the suit premises to which the petitionerplaintiff is only concerned was attempted to place at stake.

Therefore, those portions in the name of elucidation of the fact as contended in the written statement cannot be allowed in the name of interest of justice. However, since learned counsel for the petitioner did not raise objection so far as para.1 of the schedule of the amendment application considered by learned trial court, and the same only may be allowed by rejecting the rest others as mentioned in paras.2, 3 and 4 of the said amendment application, since the impugned order by allowing the entire schedule of proposed amendment has caused not only miscarriage of justice in the decision-making process but also committed illegality and perversity by allowing the opposite parties to get resiled from their earlier assertions on relationship of landlord and tenant.

Therefore, the order impugned is modified to the extent that para.1 from the schedule of amendment shall be deemed to have been allowed by rejecting the other paragraphs of the same amendment application and therefore learned trial court on being communicated with such order shall record appropriate formal order for incorporation only the first paragraph of the said schedule of amendment application dated July 22, 2015, dealt with by the impugned order, and shall direct the defendant to furnish amended written statement as well within the stipulated time by supplying copy of the same to the other side and then to proceed with the suit stage-wise for its disposal in accordance with law.

Thus the revisional application is allowed in part. However, it is made clear that learned trial court while adjudicating the suit shall not be swayed by or influenced with any observations of this court made in deciding the CO and the original stand whatever has been taken by the opposite parties in the written statement shall not be affected by this order, which of course is subject to adjudication by the court.

No order as to costs.

Certified photostat copy of this order, if applied for, shall be given to the parties.