Jayanti Roy Vs. Dass Estates Pvt. Ltd.
Email(Arising out of SLP (C) No. 22494 of 2001)
(From the Judgment and Order dated 29.8.2001 of the Kolkata High Court in C.O.No. 1341 of 2001)
(Arising out of SLP (C) No. 22494 of 2001)
(From the Judgment and Order dated 29.8.2001 of the Kolkata High Court in C.O.No. 1341 of 2001)
Respondent-in-person
West Bengal Premises Tenancy Act, 1956
Section 17(2) and (2A) – Code of Civil Procedure, 1908 – Order 6, rule 17 – Tenancy – Suit for eviction of tenant – Application for amendment of plaint – When could be rejected – Landlord filing suit for eviction of tenant – Tenant resisting the eviction application denying the existence of any relationship of tenant and landlord – Admission made in the eviction application regarding the status of the person in occupation as being licensee of suit premises – Application for amendment seeking permission for making averment that the person in possession was only a ‘permissive occupier’ and not ‘permissive owner’ and that he had orally surrendered his licence – Whether such amendment permissible. Held, there being no material inconsistency between the original averments in the application and those proposed in the amendment, and similar amendment having been permitted in the case between the same parties with regard to adjoining plot, amendment permissible. Held further that it would be open to the respondents also to make consequential amendments in their plaint and replies.
Since this Court allowed similar amendment in suit between the same parties concerning adjoining plot, we find no justification to make a departure and take a different view. For the reasons aforesaid, the impugned order dated 10.4.2001 of the trial court and dated 29.8.2001 of the High Court both are set aside. The application for amendment filed by the defendant under order 6, rule 17 of the Civil Procedure Code is allowed. It would be open to the respondents to propose consequential amendments to its plaint and replies to application under section 17(2) and (2A) of the Act which shall be considered by the trial court in accordance with law and the trial shall proceed. The appeal stands allowed with the above directions. (Para 9)
1. Leave to appeal is granted.
2. The parties represented in the case are finally heard on merits of the appeal.
3. In the suit filed for eviction of the appellant from suit premises under the provisions of section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956 ( hereinafter referred to as the Act), the application for amendment has been rejected by the trial court and the order has been upheld by the High Court of Calcutta in revision under section 115 of the Code of Civil Procedure. The appellant seeks to resist the eviction suit on the ground that there exists no relationship of landlord and tenant between the parties. In the application filed under section 17(2) and (2A) of the Act initially in paragraph 10, it was stated that Alamohan Dass was the licensee of the suit premises.
4. By the amendment application, permission was sought to delete original paragraph 10 to be substituted by new paragraph 10 to make an averment that Alamohan Dass was merely a recorded ‘permissive occupier’ of dag no. 150 and he was not in actual possession of dag no. 148 and was never recorded as ‘permissive owner’ in record of rights in respect of that suit property. It was then sought to be pleaded that Alamohan Dass in 1965 had orally surrendered his licence in respect of dag no. 150 in favour of licensor on a condition that the answering defendant, her husband and her son would be given a fresh licence for earmarked portion of dag no. 150.
5. The trial court by the impugned order dated 10.4.2001 rejected the application for proposing the above amendment on the ground that an attempt is being made to withdraw the admission made in the original application regarding status of Alamohan Dass as the licensee of the suit premises.
6. The order of the trial court was maintained by the High Court in revision on additional ground that in proceeding under section 17(2) and (2A) of the Act, complicated questions relating to title in respect of suit property are wholly irrelevant.
7. We have heard learned counsel appearing for the appellant and the authorised director of the respondent company. It may be stated at the outset that similar amendment sought in proceeding of eviction between the same parties in relation to the adjacent plot, has been allowed by this Court by decision reported in M/s. Estralla Rubber v. Dass Estate (Private) Ltd.1 2001 (8) SCC 97 ( to which one of us Hon’ble Mr. Justice D.P. Mohapatra was a party).
8. It is settled that amendments to pleadings which are moved at the proper stage and not unduly delayed should not normally be refused. In the application raising dispute on payment of rent under section 17(2) and (2A) of the Act, the appellant has right from the beginning denied relationship of landlord and tenant between the parties. An amendment was moved stating that on discovery of additional evidence and material, Alamohan Dass was merely a ‘permissive occupier’ in respect of one of the dags. The appellant also sought leave to explain the nature of her possession and occupation. There does not appear any material inconsistency between the original averments in the application and those proposed by amendment.
9. Since this Court allowed similar amendment in suit between the same parties concerning adjoining plot, we find no justification to make a departure and take a different view. For the reasons aforesaid, the impugned order dated 10.4.2001 of the trial court and dated 29.8.2001 of the High Court both are set aside. The application for amendment filed by the defendant under order 6, rule 17 of the Civil Procedure Code is allowed. It would be open to the respondents to propose consequential amendments to its plaint and replies to application under section 17(2) and (2A) of the Act which shall be considered by the trial court in accordance with law and the trial shall proceed. The appeal stands allowed with the above directions.
10. In these circumstances, we make no order as to costs.
