Nirmal Kumar Khandelwal and Others vs Suresh Kumar Mehta and Others

M.Y. Eqbal, J.—Heard Mr. Srijit Choudhury, learned counsel appearing for the petitioner.

By the impugned order, Court below allowed the amendment petition filed by the plaintiff-respondent. In the amendment petition, plaintiff wanted to correct the relief portion of the plaint by adding a further relief of declaration of title of plaintiff, before the relief "for a decree of eviction". Learned Court below has allowed the aforesaid amendment on the ground that it was pleaded in the plaint that the defendant is a trespasser.

Learned counsel appearing for the petitioner relied upon a decision of the Supreme Court in the case of Rajendra Tiwary v. Basudeo Prasad and Anr. 2001 (2) JLJR 890 and also a decision of the Patna High Court in the case of Shravan Kumar Vs. Administrative Member, C.A.T., Patna Bench and Others, .

The ratio decided by the Supreme Court is that unless relationship of landlord and tenant is established, the decree for eviction from the suit property cannot be passed. The plaintiff has to seek such declaration by filing a suit in the Civil Court of competent jurisdiction.

In the case of Most. Sumitra Devi & Ors. v. Yogendra Choudhary and Ors. (supra), a Bench of Patna High Court held that if by the amendment the nature of the suit is changed then the same cannot be allowed.

In the instant case, eviction suit was filed on the ground of personal necessity but in the plaint it was very specifically pleaded that the defendant is a trespasser. Not only that instead of paying court-fee on the 12 months rent the plaintiff valued the suit property and paid ad velorem court fee.

In that view of the matter, the contention of the plaintiff in the amendment petition that by sheer mistake the relief for declaration of title, before the relief of eviction was omitted is to be accepted.

The order, therefore, needs no interference by this Court.

This application is dismissed.

Needless to say that if the plaint was amended the defendant has every right to rebut the same by filing additional written statement.