IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.6616 of 2007
Rajesh Kumar Sharma @ Rajesh Sharma & Anr ... Petitioner
Versus
Rabindra Kumar Bansal & Ors ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE AJIT KUMAR SINHA
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For the Petitioner: Mr. R.S.Mazumdar
For the Respondents: Mr. Vipul Divya , Mr. Rishidev
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8/20.5.2009
The present writ petition has been preferred for the
following relief:
(a) In the nature of certiorari for quashing the order dated
22.9.2007 passed by the learned Additional Munsif, Dhanbad in
T.(E) S. No.55 of 2005 in terms of which a petition under order
VI Rule 17 filed on behalf of the petitioners has been rejected.
(b) Upon quashing the order dated 22.9.2007 be further pleased to
direct the learned court below to proceed in accordance with
law.
The main contention raised by the learned counsel for the
petitioner is that the learned Court below failed to exercise its
jurisdiction vested in law and misconstrued the provision of Order
VI Rule 17 C.P.C. He further refers to and relied upon section 11 of
the Bihar Building (Lease Rent and Eviction) Control Act,1982 to
support his contention about the ground of eviction.
Learned counsel for the respondents submits that the prayer
is unsustainable since it was not raised at the time of filing of suit
and the cause of action is subsequent and thus it changes the
nature of plaint/suit. He also submits that the remedy is available
for recovery of the amount or rent arrears which is provided in the
act itself.
I have considered the pleading and rival submission. The
ground of eviction is provided under Section 11 of Bihar Building
(Lease, Rent and Eviction) Control Act, 1982 which provides for
several grounds on which eviction suit can be filed and it includes
breach of condition of tenancy, bonafide requirement, alteration
and/or deterioration of building, subletting and default in payment
of rent for period for two months, etc.
The petitioner preferred the eviction suit initially on the
ground of breach of condition of tenancy and also for bonafide
requirement. During the pendency of the suit for eviction the
2.
respondent defaulted making the payment of rent which exceeded
the period prescribed for two months and that led to filing Order VI
Rule 17 application to add the additional ground for eviction as
provided u/s 11 of the Act. The finding of the learned Additional
Munsif, Dhanbad that it will change the nature of suit itself appears
to be erroneous. Order VI Rule 17 of C.P.C. permits amendment if
the nature of the suit is not changed and if the evidence not
concluded.
This issue has been considered in 1984 PLJR Page 395
and it has been specifically held at paragraph 12 and 13 which is as
under:
12. ” As already mentioned above, in the instant case the
plaintiffs-petitioners have asked for eviction of the tenant
(defendant no.1) on two grounds, viz. on the ground of sub-
letting by him to defendant no.2 and on the ground that
defendant no.1 (the tenant) had not paid a single paise
towards rent till the filing of the suit. The question arises, if
during the pendency of the suit another ground has become
available to the landlord, can the landlord not be allowed to
inform the court of the subsequent event and press into
service this additional ground for eviction of the tenant ? It
is well-settled and well recognized principles that in order to
shorten the litigation, to preserve the rights of both the
parties and to subserve the ends of justice; the court can
and should take into consideration the subsequent events
and adjudicate the rights of the parties and grant relief
available to them. Reference may be made to the case of (i)
Ram Vijay Sahi V. Bala Prasad Motani (A.I.R.1978
Patna91), (ii) Smt. Abinash Kaur V. Dr. Abinash
Nayyar and others (A.I.R.1975 Delhi 46), (iii)
Tarakpada Kirti V. Ruplekha Chatterjee (A.I.R.1978
Calcutta 189) and (iv) Prem Lal V. Yadav Chand and
another (A.I.R. 1979 Rajasthan 44).
13 ” The existence of one or more of the grounds mentioned
in the Act for eviction of the tenant does not constitute a
necessary part of the cause of action in a suit for eviction of
the tenant. A cause of action in a suit under the Act for
eviction of the tenant is certainly as accrual of a disability
against the tenant pertaining to the grounds mentioned for
3.
eviction due to his conduct or laches, thus disentitling the
tenant from the protection against his eviction. There is
nothing which debars a court from permitting the
introduction of a cause of action arising subsequent to the
filing of the suit by way of amendment so long as the
defendant has an opportunity of meeting the new case by
amendment of his written statement and by leading
evidence in support of his defence, if any. The Act forbids
the court from passing a decree or order of eviction which is
de-hors the Act. The existence of one or more of the
grounds for eviction mentioned in the Act is a sine qua non
to the exercise of jurisdiction by the court.
Be that as it may the reasoning assigned by the Court below is on
the face of it erroneous and unsustainable in the eyes of law more so
when the landlord is entitled to maintain the suit for eviction on any of the
ground stipulated under section 11 of the Bihar Building (Lease, Rent &
Eviction) Control Act, 1982.
Considering the aforesaid facts and circumstances of the case, the
impugned order is set aside and this writ petition is accordingly allowed.
(Ajit Kumar Sinha, J)
fahim/