Durga Rani (Smt.) and Others vs Ashok Gupta and Another

This writ petition is filed by defendants No.2 to 4 in civil suit No. 8A/08 assailing the order dated 15/09/2008 passed by first civil judge class I, Gwalior whereby the trial court has allowed the application filed by plaintiff respondent No. 1 under order 6 Rule 17 of C.P.C.

Facts of the case, briefly stated, are that, respondent No.1 plaintiff Ashok Gupta has filed the present suit against present petitioners and defendant No.1 Layak Chand alleging that defendant No. 1 is a tenant of the plaintiff and defendants No.2 to 4 are his sub-tenants, during the pendency of these ejectment proceedings, amendment application is filed by the plaintiff under Order 6 Rule 17 of C.P.C. stating that defendants No.2 to 4 have paid a sum of Rs.50000/- each to the plaintiff toward arrears of rent and they have directly accepted the tenancy of the plaintiff, hence, now they are not the sub-tenants and in fact, the tenants. This amendment application is allowed by the trial court by the order impugned herein. Hence, this petition under Article 227 of the constitution of India by defendants No. 2 to 4.

Contention of shri P.C. chandil, learned counsel appearing on behalf of the petitioners defendants No.2 to 4 is that this amendment has changed the nature of the proceedings, hence, cannot be allowed and the trial court has committed jurisdictional error in allowing the application. In support of his contention, counsel for the petitioner lay hands on judgment of the Apex court in the case of M/s Bharat Cooking Coal Limited vs. Raj Kishore Singh and Other, 2000 (7) Supreme 70. The Apex court in the aforesaid case, no-doubt, has laid down the law that on amendment application which changes the nature of the proceedings can be allowed, however, the facts of that case are quite distinguishable. In that case, application u/s 20 of the Arbitration Act, 1940 was filed. Amendment application in that case was dismissed by the trial court as well as High Court. Said order was challenged in the Apex court and the Apex court has affirmed the order passed by the courts below. The Apex court, in the aforesaid judgment, has nowhere discussed what was the nature of the amendment application and what was the nature of the proceedings under the Arbitration Act.

Learned counsel for the petitioner relied upon another Division Bench decision of this court in the case of Shantibai (Mst.) and Others Vs. Ganpat Rao Gujar and Others, in which the Division Bench of this court has held that proposed amendment, if allowed, would change the cause of action, hence, the amendment cannot be allowed.

Is the present case, the suit is filed for ejectment and even after the amendment application is allowed, the suit still remains for ejectment and thus, nature of the suit is not changed. Hence the trial Court has rightly allowed the application for amendment and afforded opportunity to the defendants for make consequential amendments. In such a situation, it cannot be said that the impugned order is without jurisdiction. Hence, no interference is called for in exercise of the powers under Article 227 of the constitution of India.

Petition stands dismissed.