MADAN CHAND Vs. LOONI DEVI

JUDGEMENT

(1.) THIS is a second appeal by Madanchand defendant against the appellate decree of the Civil Judge, Bikaner dated April 14, 1982 whereby the Civil Judge dismissed the Civil First Appeal No. 89 of 1979 filed by the defendant against the decree of the Additional Munsif No. 2, Bikaner dated October 29, 1979 passed in Civil Original Suit No. 40 of 1976 decreeing the suit of the plaintiff-respondent against the appellant for arrears of rent and ejectment.

(2.) FACTS in brief are that the plaintiff-respondent Smt. Looni Devi instituted Civil Original Suit No. 40 of 1976 in the Court of the Munsif Bikaner on August 7, 1986 for arrears of rent amounting to Rs. 360/- in respect of a period of three years and Rs. 2.45 as costs of notice and for ejectment of the appellant from the premises in suit detailed and described in para 1 of the plaint situated in mohalla Golechan Chajedan in city of Bikaner. Ejectment of the appellant was claimed on three grounds. Firstly, that the appellant had neither paid nor tendered rent for a period of six months and that he was and is not ready and willing to pay the rent. Secondly, that when the defendant-appellant was pressed to pay the rent in arrears, he, in June 1976, denied the title of the plaintiff as landlord and renounced his character as tenant of the plaintiff-respondent, which conduct of the appellant was neither condoned nor waived by the plaintiff. Thirdly that the residential house in which the plaintiff was residing was a small house. Two sons of the plaintiff had since been married and their family had grown and was further growing. Plaintiff's daughter had also become widow and under that compulsion she was living with the plaintiff along with her five children. The suit was contested by the defendant-appellant by written statement filed on May 19, 1977. The appellant pleaded that the suit premises belonged to him and were in his possession as owner. He denied his tenancy with plaintiff.

(3.) WHEN this appeal was heard, it appeared that on October 12, 1983, an application was filed on behalf of plaintiff-respondent under Order 6, Rule 17 C.P.C. for amendment of this plaint. By this application the plaintiff wants to add at the end of para 3, sub-para (3) of the plaint that the defendant-appellant in his written statement has renounced his character as tenant and has denied the title of the plaintiff as landlady and that this conduct of the defendant had neither been conducted nor waived by the plaintiff and on this ground the plaintiff is entitled to a decree for ejectment. Both the learned counsel were heard on this amendment application. In a similar case, this Court in Mohd. Ishaq v. Smt. Lachhi, 1979(1) RCR 418, held that in disallowing the amendment of the plaint on the view that any statement contained in the written statement could not be made the basis for seeking relief in the suit itself, the trial Court did not address to the requirement of Order 6, Rule 17 C.P.C. in that case which enjoined upon the Court to allow all such amendments as may be necessary for the purpose of entertaining the real question in controversy between the parties. The amendment application was directed to be disposed of in accordance with law. Again, in Bhinwa Ram v. Satyanarain, 1988(1) RCR 440, this Court had observed that if the landlord wanted to take advantage of the additional ground of denial of title, he can do so only if he can plead it by way of amendment.