KULSAN BIBI Vs. NRIPENDRA NATH SARKAR

JUDGEMENT

(1.) DEFENDANT-tenant being the petitioner has preferred this Revisional Application assailing the order date 13th September, 1996 passed by learned Munsif, First Court at Baruipur in Title Suit No. 131 of 1992 whereby application for amendment of written statement was rejected. DEFENDANT-tenant prayed for amendment of written statement by his application dated 5th December, 1996 under Order 6 Rule 17 of Code of Civil Procedure on the contention that major portion of tenanted premises is under the ownership of Public Works Department, Government of West Bengal. In the written statement, it is admitted that tenanted premises was the ejmali property of there brothers namely Banamali Sarkar and two others and on behalf of them one Sri Niranjan Naskar, an employee used to collect rental from the defendant-tenant.

(2.) IT is further asserted in the written statement in paragraph 16 that after demise of said Banamali Sarkar, the legal heirs have not been Made parties. Hence, from the fact it is clear that the defendant-tenant has admitted the title of the suit premises of plaintiff. Others may be are not parties in the proceeding but same is not the present issue herein. In the application for amendment of written statement, the title of the suit premises has been challenged. Learned Court below has rejected the application under Order 6 Rule 17 of Code of Civil Procedure only on the ground that defendant-tenant has taken an inconsistent plea and accordingly the same would not be allowed. In my view, inconsistent plea cannot be a ground for rejection of the application for the amendment as filed by the defendant. IT is a settled legal position now that a defendant is entitled to take inconsistent or contradictory plea so long the amendment as sought would not change the character. Title of plaintiff-landlord in the suit premises by tenant cannot be challenged, applying the principle of estoppel under section 116 of the Evidence Act. IT is admitted in the written statement in paragraph 16 that the rental of the suit premises all through was being collected by the employee of three brothers hence, under the provision of section 116 of the Evidence Act, the denial of the title of the landlord is not permissible by a tenant. Learned Munsif ought to have rejected the application on such ground. But the learned Court below had not considered this aspect of the matter and rejected the amendment application on the ground of inconsistent plea, which is not legally tenable. In view of the settled legal position and in view of the provision of section 116 of the Evidence Act, since the amendment is attracted by doctrine of estoppel, this Court exercising the revisional jurisdiction is dismissing the revisional application. Reliance is placed to the judgment of apex Court in the case Sri Ram Pasricha v. Jagganath & Ors., reported in AIR 1976 SC 2335 whereby the Court held "the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot urge that the landlord had title of the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant, the question of title to the lease property is irrelevant". Hence, impugned decision rejecting the application for amendment is modified on the ground that same is hit by section 116 of the Evidence Act. In view of such, revisional application is dismissed but no order as to costs. Application dismissed