MOHAMMED ISHAQ Vs. LACHHI

JUDGEMENT

(1.) THIS revision petition has been filed under Section 115 of the Code of Civil Procedure against the order dated 14th December, 1977 passed by the Munsif City, Jodhpur whereby the application for amendment of the plaint filed by the petitioner in case No. C.O 102/77 was dismissed by the Munsif City, Jodhpur. The suit aforesaid has been filed by the petitioner for the eviction of the respondent on the ground that the respondent had committed default in the payment of rent In her written statement filed in the said suit, the respondent has denied that she is a tenant of the petitioner and has stated that the premises in question were taken on rent by her from Shri Noor Mohammed After the 61ing of the aforesaid written statement, the petitioner moved an application for amendment of the plaint so as to add a ground that respondent, having denied that relationship of the landlord and tenant, cannot take the benefit o' the provisions of the Rajasthan Premises (Eviction and Control of Rent) Act, 1950, (hereinafter referred to as the 'Act'. It may be observed that Section 13(1)(f) of the Act provides that the bar against the passing of a decree for eviction of a tenant will not apply in a case where the tenant has renounced his character as such or deried the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant. The Munsif City, by his order dated 14th December 1977 dismissed the application filed by the petitioner for amendment of the plaint on the view that no purpose would be served by allowing the amendment sought by the petitioner in the plaint in as much as the denial of title of the petitioner by the respondent in her written statement could not afford a ground for obtaining relief in the present suit and that the basis of the aforesaid denial, the petitioner can bring a fresh suit for the eviction of the respondent. Aggrieved by the aforesaid order passed by the Munsif City, Jodhpur, the petitioner has filed this revision petition

(2.) SHRI D. K. Parihar, the learned Counsel for the petitioner, has submitted that in passing the order dated 14th December, 1977, the Munsif City has committed an error in proceeding on the basis that the denial of the title of the petitioner by the respondent in her written statement cannot afford a ground for obtaining relief in the present suit and that the only course open to 'he petitioner is to file a fresh suit on that ground The learned Counsel for the petitioner, in this connection, has placed reliance on the decisions of this Court in Bhura v. Bahadur Singh 1976 RLW 212 and Premlal v. Jadauchad 1977 RLW 265.

(3.) AS regards the preliminary objection with regard to the maintainability of the revision petition raised by the learned Counsel for the respondent, it may be noticed that in Harak Chand v. State of Rajasthan 1969 WLN 458, a full bench of this Court, while considering the provisions of Clause (c) in Section 115 of the Code of Civil Procedure, has laid down that Clause (c) is applicable only if the Subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity and that illegality or material irregularity must ha/a occurred in the manner in which the jurisdiction of the Sub - ordinate Court is exercised, i.e. in the manner in which that case is heard or decided. The aforesaid decision of the full Bench of this Court in Harak Coand v. State of Rajasthan 1969 WLN 458 was considered by a learned Single Judge of this Court (Lodha, J.) in Roop Narain v. Prem Chand T. Nathani 1973 RLW 594 arising out of an order disallowing he plaintiff's application for amendment of the plaint and it has been observed. The trial court has not addressed itself to the requirements of Order VI Rule 17 CPC which enjoins upon the Court to allow all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties.... In disallowing the plaintiff's prayer, the court below has ignored the well established principles to be kept in mind in the matter of allowing amendments & its finding cannot be said to be a judicial one. In this view of the matter, a case for interference has been made out under Section 115 of the Code of Civil Procedure.