SWARNJEET SINGH Vs. ASHARAM GAMNE THROUGH L.RS.

JUDGEMENT

(1.) IN this civil revision preferred under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the defendant -petitioner has called in question the legal validity of the order dated 8.01.1999 passed in Civil Suit No.71/98 by the VI Civil Judge, Class -I, Raipur whereby he has entertained the prayer made under Order 6R.17 of the Code by the plaintiffs. Sans unnecessary details, the facts necessary for disposal of the civil revision are that Late Asharam Gamne, the predecessor in the interest of non -applicants No. 1 -A to 1 -E filed the aforesaid civil suit for eviction of the tenant -petitioner on the ground that the premises in question was required bona fide for starting a 'Kirana' business for himself and his son Shankar Rao. It was pleaded that the plaintiff had no other reasonable suitable accommodation of his own at Raipur town. The defendant -petitioner filed his written statement to the suit contending, inter alia, that on the ground floor there are two other shops of which the original plaintiff was the owner and one of the shops had been let out to Gram Seva Samiti which used to carry on the business of selling milk in the name and style of 'Goras Bhandar'. It was further pointed out that during the pendency of the suit the said shops had fallen vacant and the plaintiff along with his son Shankar Rao has started a grossery business. Thus, it was averred that the bona fide need had come to an end. As pleaded in the civil revision issues were framed and the matter was heard and the case was posted to 1.9.1994 for delivery of judgment. However, the matter was taken up on 2.9.1994 and time was granted to the plaintiff to make an application for amendment. The application for amendment was filed and the same was allowed. The said order was impugned by the defendant in civil revision No. 1446/94. During the pendency of the revision the learned counsel for the original plaintiff submitted that he would withdraw the application for amendment. Because of this statement the civil revision was dismissed.

(2.) WHILE the matter stood thus, the original plaintiff Asharam Gamne expired. His legal representatives, namely, non -applicant No. 1 -A to 1 -E were brought on record by way of substitution. After the substitution an application for amendment was filed by the legal representatives wherein it was stated that after the death of the original plaintiff there was an oral partition amongst the plaintiff in respect of the property and the accommodation in question had fallen to the share of Neelkanth Gamne (the non -applicant No. 1D herein). It was further stated in the application that the said Neelkanth Gamne had been carrying on a 'Kirana' business at Raipur in a rented accommodation and he was being pressurised by the landlord to vacate the premises and hence, the suit accommodation was required bona fide for him to commence the business. The prayer for amendment was objected to by the tenant -petitioner but the learned trial Judge allowed the application for amendment. The said order allowing the amendment was assailed in civil revision No.1469/98 wherein a learned Single Judge of this Court came to hold that there had been no application of mind in allowing the amendment and accordingly it deserved to be set aside. Being of this view he set aside the order passed by the trial Court and directed to rehear the parties on the said application and decide the same in accordance with law by passing a speaking order. After the matter was remanded the learned trial Judge heard the parties and by the impugned order allowed the amendment application. The learned Judge opined, in view of the changed circumstances, the proposed amendment was necessary. The said order is the cause of grievance of the present revisionist. I have heard Mr. Alok Aradhe, learned counsel for the petitioner and Mr. H.B. Agrawal, learned counsel for the respondents. Mr. Aradhe has contended that the trial Court has committed gross jurisdictional error by allowing the amendment. It is his submission that by virtue of allowing the amendment there has been a change in the cause of action which is not permissible in law and, therefore, the amendment should have been refused. The learned counsel has contended that by allowing the prayer of the non -applicants the tenant -petitioner has been seriously prejudiced as his defence has lost its meaning. It is also contended by Mr. Aradhe that as a new case is being introduced the amendment should have been refused. In support of his submission he has placed reliance on the decisions rendered in the cases of Shantilal Thakordas and others Vs. Chimanlal Maganlal Telwala, : AIR 1976 SC 2358; M/s Modi Spinning & Weaving Mills Co. Ltd. and another, : AIR 1977 SC 680; Haji Mohammed Ishaq Wd. S.K. Mohammed and others Vs. Mohamed Iqbal and Mohamed Ali & Co, : AIR 1978 SC 798; Vineet Kumar vs. Mangal Sain Wadhera, : AIR 1985 SC 817; and Heeralal Vs. Kalyan Mal and others, : (1998)1 SCC 278. Resisting the aforesaid submissions it is put forth by Mr. H.B. Agrawal learned counsel for the non -applicants that subsequent facts can be taken note of by the Court of the first instance and, therefore, there is no error in allowing the amendment. The learned counsel has proponed that the original plaintiff has filed the suit for his need as well as need of Shankar Rao and after his death his need becomes the need of legal representatives and when a partition has taken place and the need of a particular son is agitated the cause of action does not change and hence, there is no material irregularity in the order in allowing the amendment. Mr. Agrawal has also canvassed that when the original landlord expressed his need in the plaint it would include the need of all of his legal representatives who have been brought on record after his death.

(3.) TO appreciate the rival submissions raised at the Bar, I have carefully perused the plaint and the written statement which have been brought on record by the learned counsel for the petitioner. Indisputedly the original plaintiff asseverated his and his son Shankar Rao's need in respect of the suit premises. It is also not disputed in the written statement that the tenant -petitioner put forth that original plaintiff was running a 'Kirana' shop in the nearby premises where previously Goras Bhandar was in existence. Thus, in essence, the tenant -petitioner had disputed the bona fide need of the plaintiff and his son Shankar Rao. In this factual backdrop the decisions cited by Mr. Aradhe are to be appreciated. In the case of Haji Mohammad Ishaq (supra) the Apex Court held as under - ..... In our judgment the High Court has rightly refused the prayers of the appellants. The amendment of the written statement sought was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken up either at the time of the dealings between the parties or in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The High Court rightly rejected all those petitions and we need not mention in any detail the reasons thereof. In the case of Vineet Kumar (supra) the Apex Court expressed as under -