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1981 Supreme(Cal) 405
High Court Of Calcutta
Dipak Kumar Sen
NARENDRA NATH PAL CHOUDHURY - Appellant
Versus
G.L.MALHOTRA - Respondent
Suit 764 Of 1980
Decided On : 11/30/1981
The court has the power to allow an amendment of the plaint to include a cause of action which was not in existence on the date of institution of the suit if it is necessary to shorten litigation and to do justice to the parties.
Headnote:
AMENDMENT OF PLAINT - SUBSEQUENT FACTS - INTRODUCTION OF NEW CAUSE OF ACTION - POWER OF COURT - SECTION 153 AND ORDER 6, RULE 17 OF THE C. P. C. - COURT CAN TAKE NOTICE OF SUBSEQUENT FACTS AND AMEND THE PLAINT TO INTRODUCE A NEW CAUSE OF ACTION IF IT IS NECESSARY TO SHORTEN LITIGATION AND TO DO JUSTICE TO THE PARTIES.
Fact of the Case:
The plaintiff filed a suit for eviction of the defendant from the demised premises on the ground of breaches of covenants and conditions in the lease. The lease expired on March 31, 1981, and the defendant failed to deliver up possession of the premises. The plaintiff sought to amend the plaint to include a cause of action for eviction on the ground of expiry of the lease.
Finding of the Court:
The court held that the plaintiff was entitled to amend the plaint to introduce a new cause of action for eviction on the ground of expiry of the lease. The court relied on the principles laid down by the Supreme Court in several judgments and also on a judgment of a Division Bench of this Court.
Issues: Whether the court has the power to allow an amendment of the plaint to include a cause of action which was not in existence on the date of institution of the suit.
Ratio Decidendi: The court held that the court has the power to allow an amendment of the plaint to include a cause of action which was not in existence on the date of institution of the suit if it is necessary to shorten litigation and to do justice to the parties.
Final Decision: The court allowed the plaintiff's application to amend the plaint to include a cause of action for eviction on the ground of expiry of the lease.
( 1 ) NARENDRA Nath pal Choudhury and Eiswendra Nath Pal Choudhuri, the plaintiffs, filed this suit against G. L. Malhotra, Bijanendra Nath Pal Choudhuri and Kumar Shankar Pal Choudhuri, the defendants, claiming, inter alia, a decree against the defendant No. I for vacant possession of the portion of premises No. 79a, Acharya Jagadish Chandra Bose Road, Calcutta; decree for Rupees 5,000/- as damages against the defendant No. 1; alternatively an enquiry into damages and decree for the amount as may be found due upon such enquiry; a further decree for Rs. 72,549. 22 p, against the defendant No. 1 and alternatively decree against the defendant No. 1 for such other sum as may be found fit and proper; decree for mesne profits and future profits at the rate of Rs. 50/- per day on and from the 1st Feb. 1980 till delivery of possession; alternatively, an enquiry into mesne profits and a decree for the sum as may be found due upon such enquiry and other reliefs.
( 2 ) THE plaintiffs' case is that the said portion of the said premises was demised under a lease in favour of the defendant No. 1' by a registered deed dated the 31st March, 1960 for a period of 21 years on and from April 1960 at an agreed rent of Rs, 350/- per month. The plaintiff alleges further that the defendant No. 1 committed breaches of the covenants and conditions in the said lease, inter alia, as follows : (a) The defendant No. 1 defaulted in payment of the monthly rent since March 1969. The said default has continued. (b) The defendant No. 1 has used or permitted the said premises to be used for purposes other than those envisaged in the lease and also has wrongfully in-stalled machinery therein and is carrying on manufacturing activities in the premises. (c) The defendant No. 1 stored injurious inflammable and combustible materials in the said premises. (d) The aforesaid wrongful acts of the defendant No. 1 have caused damage to the said premises and constitute a nuisance. (e) The defendant No. 1' has made structural alterations to the premises by constructing a mezzanine floor without the approval of the plaintiff.
( 3 ) BY the present application made on a summons dated the 27th July, 1981 the plaintiff seeks to amend the plaint by, incorporating therein the following:-- The term of 21 years under the said lease has expired on the 31st March 1981 by efflux of time and that the defendant No. 1 has failed to deliver up possession of the demised premises on the 1st Apr. 1981 in spite of demands.
( 4 ) THE defendant No. 1' has affirmed an affidavit on the 28th Aug. 1981 which has been filed in opposition to this application. It Ss, inter alia, alleged in this affidavit that the suit having been filed on the 28th Aug. 1980, the plaintiff is not entitled to effect the amendment as applied and introduce a cause of action which arose on the 1st April 1981. If the amendment is allowed, the cause of action introduced by the amendment would relate back to the date of institution of the suit.
( 5 ) LEARNED counsel for the plaintiff submitted at the hearing that the amendment sought to be incorporated is based on subsequent facts material to this suit and 'the Court should take notice of the same to do justice to the parlies and to shorten the proceedings. Contentions to the contrary were made on behalf of the defendant No. 1.
( 6 ) SEVERAL decisions were cited at the bar in support of their respective contentions which are as follows : (a) Rajeshwar Dayal v. Padam Kumar Kothari. In this case, a suit for eviction of a tenant was filed on the 24th Jan, 1966 on the ground of personal necessity and an application was made to amend the plaint on the ground of alleged default in payment of rent on 3rd Apr. 1967. In disallowing the application a single Bench of the Rajasthan High Court held, inter alia, that the Court has no power either under Section 153 or under Order 6, Rule 17 of the C. P. C. to allow an amendment of the plaint to include a cause of acti
