Dinesh and Another vs Tej Singh and Another

Hon''ble Shri Justice N.K. Mody

Being aggrieved by the order dated 21/10/2011 passed by 10th Civil Judge, class-I, Indore in civil suit NO. 144-A/92(old) of which new number is 8-A/11 whereby the application filed by the respondent No. 1 under Order VI Rule 17 CPC was allowed, the present petition has been filed.

Short facts of the case are that respondent NO. 1 filed a suit for eviction against the petitioner and others on 18/9/92 alleging that respondent No. 1 is owner of the building bearing Municipal House No. 69, known as Rampurwala building, M.G. Road, Indore. It was alleged that petitioner is tenant in the suit accommodation @ Rs. 100/-per month and tenancy of the petitioner is monthly. Further case of respondent No. 1 was that originally Jiyalal S/o Ramnivas who happens to be father of petitioners was tenant in the suit accommodation who died on 3/1/88. After his death, his widow entered into an agreement with other L.Rs. of the deceased Jiyalal on 9/3/88. it was alleged that a request was made to respondent No. 1 to continue the tenancy with the widow as other L.Rs. Of deceased Jiyalal had executed agreement in her favour in that regard. It was alleged that at that time i.e. w.e.f. 1/2/88 tenancy of Jiyalal was Rs. 851/-and thereafter w.e.f. 1/2/92 rent was enhanced by Rs. 100/-per month. In the suit it was alleged that since widow of Jiyalal has inducted sub-tenants, therefore decree of eviction be passed u/s 12(1)(b) of the M.P.Accommodation Control Act(which shall be referred hereinafter as "the Act"). The suit was contested by the widow and also other L.Rs. and the alleged sub-tenant. After framing of issues and recording of evidence, the suit was dismissed, against which an appeal was filed which was also dismissed, hence Second Appeal was filed which was numbered as 308/96 and was allowed vide order dated 1/10/2002 and case was remanded with certain directions. In compliance of order passed by this court, respondent No. 1 moved an application for amendment which was allowed. Thereafter another application was filed by respondent No. 1 wherein it was alleged that respondent NO. 1 requires the suit accommodation bonafidely for carrying on the business of Ice-cream parlour. This application was opposed and was allowed vide order dated 21/10/2011, against which the present petition has been filed.

Learned counsel for petitioners submits that impugned order is illegal and deserves to be set aside. It is submitted that scope of trial court was limited as directed by this court. In the facts and circumstances, learned court below committed error in allowing the respondent No. 1 to add a new ground of eviction which was not permissible. For this contention, reliance is placed on a decision in the matter of Rajaram Vs. Vithabai, 1990 JLJ 71 , wherein this court has held that "court to which the case is remanded has to comply with the order of remand." It was further held that acting contrary to order of remand is contrary to law and no amendment can be allowed if not directed." Reliance is also placed on a decision in the matter of Chandanmal Vs. Rawatmal, wherein Rajasthan High Court held that "When a case is remanded by the High Court to the lower appellate court, it is the imperative duty of the appellate Court to implicitly given effect to the discretion given in the remand order. It has no jurisdiction to go beyond the direction. Refusal to carry out the directions amounts to denial of justice. The position would be different when the appellate court after the remand order is faced with a situation requiring to act under O.41 R.27(1) (aa) or when a subsequent even takes place requiring the Court to take notice of it or there is any other supervening factor whereby the course of action is controlled like change in law whereby it may not be possible to abide by the direction in the remand order. Further reliance is placed on a decision in the matter of Jahurul Islam Vs. Abul Kalam and others, wherein it was held that "where an order of remand was passed under Order 41 Rule 23-A but the suit was sent back with a direction from the trial court to a definite finding on the main or rather the only point in issue viz. whether the plaintiff, appellant was the Thika tenant/suit land, after allowing the parties to adduce fresh evidence, this direction may cover a bonafide amendment; but, it will not cover filling up of holes in one''s case revealed by the first trial viz., an amendment for adding to the plaint the plea of acquisition of title by adverse possession.

Learned counsel further submits that keeping in view the proviso of Order VI Rule 17 CPC, an amendment application which was filed after more than 14 years could not have been allowed as the respondent No. 1 has not assigned any reason for delay. For this contention, reliance is placed on a decision in the matter of Chander Kanta Bansal Vs. Rajinder Singh Anand, wherein Hon. Apex Court held that "in amendment of pleadings, liberal principles guide exercise of discretion in allowing amendment. But care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon opposite party under pretence of amendment.

It is submitted that in the facts and circumstances of the case the petition be allowed and impugned order be set aside.

Mr. Nitin Phadke, learned counsel for respondent No. 1 submits that proposed amendment is based on subsequent event. It is submitted that since the suit for eviction was filed u/s 12(1)(b) of the Act in the year 1992 and could not attain finality upto the year 2011, therefore need arose and amendment application was filed. Learned counsel submits that since there was no prohibition, therefore learned court below committed no error in allowing the application. For this contention reliance is placed on a decision in the matter of Sanatan Mohapatra and Others Vs. Hakim Mohammad Kazim Mohmmad and Others, wherein First appellate Court after setting aside judgment and decree, remitted the suit to the trial Court, directing its fresh disposal after framing a separate issue, Trial court was also directed to give opportunities to parties to adduce fresh evidence, case not one of appellate Court framing certain specific issues and referring them for trial to the trial court, it was held that neither Rule 23 nor R.25 of O.41 was applicable and Remit order held to be an open remand order.

Learned counsel submits that proviso to Rule 17 of Order VI was inserted w.e.f. 1/7/2000, while the suit was filed in the year 1992 i.e. prior to the amendment, therefore the proviso of Rule 17 is not attracted in the present case. For this contention reliance is placed on a decision in the matter of State Bank of Hyderabad Vs. Town Municipal Council, (2007) 1 SCC 765 wherein the suit was filed in the year 1998, Hon. Apex Court held that "Proviso was not applicable in view of S.16(2)(b) of the amending Act of 2002. Reliance is also placed on a decision in the matter of Sumesh Singh Vs. Phoolan Devi and Others, wherein it was held that since the suit was filed in the year 1999, therefore proviso added by CPC (Amendment) Act, 2002 w.e.f 1/7/2002 is not applicable.

Learned counsel further submits that in the facts and circumstances of the case, no illegality has been committed by the learned court below in allowing the application filed by respondent NO. 1. It is submitted that petition filed by the petitioners has no merits and the same be dismissed.

Heard the parties and perused the record. From perusal of the judgment dated 1/10/2010 passed in S.A. No. 308/96 it is evident that while allowing the appeal and remanding the case, this court permitted the parties to amend the pleadings. In compliance with the judgment passed by this court, the suit was also amended by the respondent No. 1 but immediately thereafter the second amendment application was filed wherein decree of eviction was also prayed u/s 12(1)(f) of the Act. Since the suit is of the year 1992, therefore proviso of Rule 17 of Order was not applicable in the present case as proviso came in force w.e.f. 1/7/2002. Since full opportunity was given to the learned trial court to re-decide the suit, therefore it can safely be said that remand order was under Order 41 Rule 23A CPC. Since respondent No. 1 is at liberty to file a fresh suit on the ground of genuine requirement, therefore in view of this court learned court below committed no error in allowing the application for amendment which would otherwise add multiplicity of the suit. However since in the application it was not alleged that when the need arose to respondent No. 1, therefore learned court below committed error in not imposing the cost on respondent No. 1.

In view of this, the petition is allowed in part. The impugned order passed by learned trial court is modified to the extent that respondent No. 1 shall pay cost of Rs. 5000/-to the petitioner.

No order as to costs.