ORDER :- This revision petition is directed against the order of Subordinate Judge (II), allowing certain amendments to the plaint in T. S. No. 34 of 1959.

2. I find from the records that the petition for amendment has not even been numbered in the lower Court and that the order passed by the learned Subordinate Judge merely mentions "amendment matter". This is wrong. An interlocutory application filed in a suit has got to be numbered as soon as it is taken on file.

3. The plaintiff-respondent filed the suit against the petitioners as defendants stating that they were his tenants from 15-5-1958 of a plot of land and the shop building thereon, that the defendants did not pay the rent and put up certain constructions of permanent character without the knowledge and consent of the plaintiff, that thereby they forfeited the lease-hold right and that on various occasions, the plaintiff asked the defendants to vacate the suit shop, but they refused to do so. He, therefore, prayed for the eviction of the defendants and he also prayed for a sum of Rs. 900/- by way of damages for use and occupation of the land and shop.

4. The defendants filed a written statement contending, inter alia, that there was no valid notice to quit and as such the plaintiff had no cause of action to pray for their ejectment. With regard to the prayer for damages for use and occupation, the defendants claimed a set-off for certain amounts spent by them, with the details of which we are not concerned for the present. The plaintiff filed a reply statement regarding the plea of set-off. Issues were framed in the suit, one of the issues being whether the suit was not maintainable for want of a notice to quit.

5. The suit thereafter underwent many adjournments. About 9 months after the framing of issues, the plaintiff applied for the amendment of the plaint. We are not concerned with all the details of the amendment application, but only with those portions of it which were allowed by the lower Court. They related to a new averment which the plaintiff sought to make stating that he had terminated whatever interest the defendants were allowed to have in the properties in suit by a notice dated 29-8-1958 and that the cause of action arose on 15-9-1958, the grace time allowed to the defendants for surrendering possession. Another amendment was in the relief portion in which the plaintiff prayed for further mesne profits accuring pendente lite and up to the recovery of possession. The said amendments were allowed by the Subordinate Judge. The Subordinate Judge stated in his order with regard to the notice that it could be reasonably believed that the omission in the original plaint was due to inadvertence and hence the amendment was permissible. With regard to the claim for further mesne profits he stated that it was only an incidental prayer and so could be allowed.

6. It was argued in revision that the amendments should not have been allowed. It was pointed out that before a suit for eviction was filed by a landlord against the tenant a notice to quit had to be given and the cause of action for the suit would arise if the tenant failed to vacate on the termination of the date fixed for vacating the land and that no such cause of action was shown in the original plaint and so the plaint ought to have been rejected under O. 7 R. 11 C. P. C. on the ground that the plaint did not disclose a cause of action.

My attention was drawn to the words "shall be rejected" in O. 7 R. 11 C. P. C. and it was argued that it was a mandatory provision. It was also pointed out that O. 6 R. 17 relating to the amendment of pleadings used the words "may allow" thereby making it a discretion of Court and it was urged that where there was a mandatory provision and a discretionary provision in the Code, the mandatory provision would override the discretionary provision and so an amendment of a plaint which had to be rejected cannot be allowed by the Court in order to give an opportunity to the party

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