Mt. Subashini Majumdar and Another vs Krishna Prasad Mahatoo and Others

Ram Labhaya, J.—This petition of revision is directed against an order of Sree K. Bardoloi, Munsiff, Dibrugarh dated 18-4-1955 by which plaintiffs'' objections to the acceptance of an additional written statement from the defendants were allowed.

The suit was against two defendants Mt. Subashini Majumdar and another for ejectment. The defendants were lessees under a registered lease of which the term had expired. They were holding over. The suit was to eject them after notice on the ground that the plaintiffs needed the property in suit for their own use. The defendants by their written statement resisted the suit alleging that after the expiration of the term of the registered lease the plaintiffs agreed to the renewal of the lease for an indefinite period at a fixed rental of Rs. 100/-.

They also pleaded that on the basis of the renewal they had effected improvements on the property and had spent large sums of money. By the additional written statement they wanted to set up the plea that they were not the tenants at all. Their husband was the real tenant They were merely benamidars for him and though the document of lease showed that they were the tenants, the beneficial interest in the tenancy was in the husband. On 3-3-1955 the defendants prayed for permission to file the additional written statement by which this plea was sought to be raised.

The learned Munsiff ordered that the defendants have filed a petition praying for permission to file �an additional written statement. They have also filed an additional written statement along with it. It is accepted. Let a copy of it be supplied to the plaintiffs." The rest of the directions in the order were for filing of documents and framing of issues. On 18-4-55 he heard the counsel for the parties and came to the conclusion that the amendment of the written, statement by the defendants was not permissible, in law as it changed the character of the defence and was inconsistent with the case originally set up. He therefore vacated his previous order dated 3-3-1955 by which the additional written statement was accepted by him, observing that this order (of 3rd March) was passed without proper hearing of the parties.

Mr. Deb on behalf of the defendant petitioner has argued that the learned Munsiff had no jurisdiction to vacate his previous order dated 3-3-1955. He has also assailed the correctness of the order on the ground that the amendment of the written statement which was sought to be made was within the permissible limits and the learned Judge was not correct in ruling it out.

Under Order 6 Rule 17, Civil P.C. "the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

The powers given to the court by this rule are indeed wide. Either party may be permitted to alter or amend his pleading in such a manner and on such terms as may appear to the Court to be just. The further provision contained in the rule is that all such amendments shall be made which may be necessary for the purpose of determining the real question in controversy between the parties. This case does not fall under the second clause of Rule 17. The amendment does not merely raise another question between the parties.

The defendants want to set up a new case. They are aiming at the substitution of their husband for themselves. Their case is that the husband was the real tenant. It is not merely the amendment of the written statement that is sought. The real purpose is to have another party introduced into the case. The amendment therefore could be permitted only if it could fall within the first part of Order 6, Rule 17.

Even though the power with Court is very wide, it has got to be exercised in conformity with sound judicial principles. The discretion left to the Court is judicial and not arbitrary. An amendment setting up a case which is totally inconsistent with the original case is not allowed; normally, particularly when it is unjust to the other side. The proposed amendment may easily have the effect of non-suiting the plaintiffs. The Court will normally refuse to allow such an amendment.

The defendants by their amendment are withdrawing an admission made in the written statements. They pleaded that they were tenants under the registered lease and after that there, was the renewal of the lease and as tenants they had made some improvements on the property which forms the subject matter of the suit. There is also the registered deed, the execution of which is admitted. In their reply to a notice received from the plaintiffs also this tenancy was admitted.

The additional written statement constitutes a denial of the tenancy so far as the defendants are concerned, the plea in fact being that the plaintiffs sued the wrong persons, the tenant being the husband of the defendants. If the new plea is allowed, the character of the defence is materially altered. It would certainly be inconsistent with the defence originally set up and it would cause serious prejudice to the plaintiffs.

The admission made in the written statement would stand withdrawn and they will have to fight the case on a different basis altogether. The withdrawal of admission relating to the existence of the tenancy would cause an injury to the plaintiffs, which cannot be compensated for by costs. The learned Munsiff was therefore right in the view that this amendment was not permissible. It was not within the scope of Order 6, Rule 17 and could not therefore be allowed.

In regard to the question whether the learned Munsiff could review his previous order it appears that on 3-3-1955 the petition praying for permission to put in an additional written statement was put in along with the writ ten statement. It was accepted. There was no hearing. The order does not indicate that the petition or the additional written statement was shown to other side or that they were furnished with an opportunity to raise any objections to it.

The learned Munsiff himself has observed that the order of 3-3-1955 was passed without any proper hearing of the parties. In these circumstances it cannot be said that this order was passed after hearing the parties. It is in substance an ex parte order even though it does not state so. The learned Munsiff also treated it as an ex parte order.

As an ex parte order it would be subject, to just exceptions by the other side. The plaintiffs on getting a copy of it objected to the order. They were heard and their objections were allowed. We do not think therefore that any defect of jurisdiction has crept into the order. The learned Munsiff had in these circumstances power to vacate what was no more than an ex parte order. This was the view taken in--Bibee Tulsiman v. Harihar Mahato 9 Cal WN 81 (FB)(A). Maclean, C.J. observed in. this case that

the Court has an inherent power to deal with an application to set aside an order ''ex parte'' and to set it aside upon a proper case being substantiated.

This case does fall within the rule with which we respectfully agree. There is thus no basis for interference with the order dated 18-4-1955. The petition of revision is dismissed and the rule discharged. We make no order as to costs.

Deka, J.

I agree.