Smt. Radha and Others vs IVth Addl. Civil Judge and Another

Sibghat Ullah Khan, J.—Heard Sri J.P. Mathur, learned Counsel for petitioners, who are defendants in R.S. No. 160 of 2000, Zareena Begum v. Radhey Shyam (since deceased and survived by legal representatives petitioners). In the plaint, plaintiff opposite party No. 2 in this writ petition claimed that the property, which had been let out to the defendants-petitioners was an open piece of land. Suit was filed after termination of tenancy. In the plaint as originally filed no relief for recovery of unpaid rent was claimed. According to the learned Counsel for petitioners even in the notice which was given before filing of the suit no demand for any arrears of rent was made. In the written statement, defendants-petitioners denied that the tenanted property was an open piece of land and they asserted that it was constructed building which was let out to them. Petitioners-defendants filed application in the suit seeking permission to deposit the rent, which was opposed by the landlord on the ground that the suit was not for recovery of rent and provisions of Order XV, Rule 5, C.P.C. would not apply. The contention of the landlord was accepted by the Trial Court as well as lower Revisional Court.

Thereafter, on 18.7.2011 landlord filed application under Order VI, Rule 17, C.P.C. seeking amendment in the plaint for incorporating the prayer for recovery of rent stating that w.e.f. 1.12.1999, rent at the rate of Rs. 200/- per month had not been paid. However in the prayer clause it was specifically mentioned that actual relief was being confined to the unpaid rent from 1.6.2008 to 30.6.2011 as the rent prior to 1.6.2008 had become barred by time from the date of filing of the amendment application. The said amendment application was allowed by the Trial Court/IV Additional Civil Judge (J.D.), Court No. 36, Lucknow on 12.7.2013. Against the said order petitioners have filed this writ petition.

Learned Counsel for petitioners has argued that the amendment was barred by Order II, Rule 2, C.P.C. This argument is not correct. Order II, Rule 2, C.P.C. applies to different suits and not to different stages of the same suit. The other argument is that cause of action for eviction and recovery of rent is same or flows from the same action/inaction. By virtue of amendment of U.P. in Order II, Rule 2 Explanation- (2), C.P.C. these are two distinct causes of action.

Even though I do not find any error in the impugned order, however it is clarified that plaintiffs would not be entitled to file any application under Order XV, Rule 5, C.P.C. as at the initial stage she resisted the attempt of the defendants-petitioners to deposit the rent.

It is further clarified that in case ultimately the Court holds that it was the building which was let out and U.P. Act No. 13 of 1972 applies on the said building then there would not be any question of eviction as in the plaint no ground for eviction as mentioned u/s 20(2) of U.P. Act No. 13 of 1972 has been taken. Merely because relief claiming the rent has been added in the plaint it does not mean that eviction is being sought on the ground of default. In any case for eviction on the ground of default of a building on which U.P. Act No. 13 of 1972 applies, prior notice u/s 20(2)(a) is necessary, which was never given.

Writ petition is accordingly disposed of.