ORDER
Abhay M. Naik, J.
1. This petition under Article 227 of the Constitution of India has been preferred against the order dated 9-4-2007 contained in Annexure P-5.
2. In a suit for eviction from residential premises, ejectment has been sought in respect of a part of the premises for non-residential need of wife of plaintiff No. 1 which is not permissible in law. For remaining part, ejectment was sought for the residential need of plaintiff No. 2. It is pertinent to note that plaintiff No. 1 was son of plaintiff No. 2.
3. During pendency of the suit, plaintiff No. 2 died. An application for amendment under Order 6 Rule 17 of Code of Civil Procedure was filed to delete Paragraphs 7 and 9 of the plaint pertaining to the alleged need of wife of plaintiff No. 1 as well as plaintiff No. 2. Instead, a fresh paragraph was sought to be substituted in place of existing Paragraph 7 to the following effect:
7. That surviving plaintiff Sudhir Jha is residing on the first floor having one block and the accommodation in his possession is not sufficient to accommodate all the family members comfortably. Plaintiff Sudhir Jha has a grown up son, who is married and the present accommodation in possession of plaintiff Sudhir Jha would not be sufficient to accommodate all the members of the family comfortably. As such, the entire accommodation in possession of the defendants is required by the plaintiff Sudhir Jha for his own personal need as well as the need of his family members, which includes his wife and son. The present accommodation in occupation of Sudhir Jha cannot accommodate all the members of the family and, therefore, the plaintiff is entitled for a decree of eviction under Section 12 (1) (e) of the M.P. Accommodation Control Act, as the plaintiff does not have any other alternative reasonable suitable accommodation of his own in the city of Jabalpur in his vacant possession, which can satisfy his bonafide need for residence of the plaintiff and his family members. As the need of the plaintiff No. 2 Premwati Jha has come to an end because of her death, her need cannot be pleaded. Similarly, the need of Smt. Alka Jha has no meaning, as her need cannot be considered under law, because she cannot get premises vacated for non-residential purpose, as the premises was given for residential purpose and otherwise too, the need of the spouse cannot be considered in any of the clauses of Section 12 of the M.P. Accommodation Control Act. The need of Alka Jha was pleaded due to wrong advice of the Counsel and, therefore, the need of plaintiff Sudhir Jha alone has to be considered under Section 12(1) (e) of the M.P. Accommodation Control Act.
Likewise, a prayer was made to delete Paragraphs 9, 10 and 12 on account of having become insignificant. The application was opposed by the defendants/respondents. Learned Trial Judge partly allowed the application and permitted the plaintiff No. 1 to delete the averments regarding the alleged need of plaintiff No. 2. However, the plaintiff/petitioner was not permitted to delete the averments regarding the alleged business need of wife of plaintiff No. 1 and was not further permitted to substitute fresh Paragraph No. 7 containing his bonafide need for residential purpose with respect to the entire suit premises.
4. Aggrieved to the aforesaid extent, this petition has been preferred by the plaintiff No. I/petitioner, who now happens to be the sole plaintiff.
5. Shri A.K. Jain, learned Counsel appearing on behalf of the petitioner made two folds submissions. He contended that ejectment from a residential premises on the ground of business need of spouse of the plaintiff/ petitioner was impermissible and it is, merely, on account of ill-advise of the Counsel that the suit was filed. Secondly, after the death of plaintiff No. 2, the remaining plaintiff/petitioner has a right to bring on record by way of amendment the effect of subsequent events. Plaintiff/petitioner was son of the plaintiff No. 2 and has a right to project his residential need by way of amendment.
6. Per contra, Shri Sanghi, learned Counsel appearing on behalf of respondents, contended that the suit for eviction from residential premises has been instituted on the ground of alleged business need of wife of plaintiff No. 1 with full awareness. An affidavit in support of averments contained in the plaint was duly submitted. Further an affidavit containing chief examination was also submitted in support of the alleged business need. Moreover, there is no due diligence on the part of the plaintiff to move an appropriate application at proper juncture and keeping in view the proviso added to the provision of Order 6 Rule 17 of Code of Civil Procedure, the application for amendment to the impugned extent has been rightly rejected. Thus, no interference is warranted and the petition is liable to dismissal.
7. Learned Counsel for the parties addressed this Court at length which have been considered.
8. Crucial test for deciding an application for amendment is that whether the proposed amendment is necessary or not for deciding the controversy between the parties. Admittedly, the real controversy between the parties is about eviction from residential premises. Section 12 (1) (1) of the M.P. Accommodation Control Act, 1961, does not empower a Court to direct ejectment from a residential portion on the ground of bonafide need for non-residential purpose. This being so, the ground of ejectment on the basis of alleged business need of wife of plaintiff No. 1 was not permissible at all. There is always a duty of an Advocate to prepare and institute a suit on permissible grounds after going through the provisions of law. If, he institutes a suit merely on the request of his client on impermissible grounds, he himself may be blamed for it, because a litigant is not supposed to know about the niceties of law. A lawyer in this manner renders services to a litigant and may be held guilty for defective service under the provisions of Consumers Protection Law. A lawyer, if, does not rectify such mistake in a prompt manner, a litigant proceeding on lawyer's advice may not be blamed for want of due diligence unless it is established that the impermissibility was brought into his notice. A litigant whenever is made aware of such impermissibility may bring an appropriate application for amendment and cannot be blamed for want of due diligence at earlier stages. Thus, the proviso to Rule 17 of Order 6 of Code of Civil Procedure does not assist in any manner the defendants/respondents.
9. In the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. : AIR2006SC1647 , Hon'ble Supreme Court of India has held that the object of Order 6 Rule 17 of Code of Civil Procedure is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to other side. It is further a trite law that object of provision for amendment is to avoid multiplicity of litigation.
10. It. is to be now examined whether the proposed amendment would cause any injustice or prejudice to the defendants/respondents. The necessary consequence of the existing pleadings pertaining to the claim for eviction on the grounds of alleged business need of spouse of plaintiff/petitioner would have been definitely the dismissal of the suit to that extent. If the plaintiff/petitioner is permitted to delete such averments, the cause of action based on such averments will be deemed to have vanished which will not cause any injustice to the defendants/respondents, because otherwise also the suit to that extent would have ended into dismissal. In the case in hands, the plaintiff/petitioner is son of the deceased plaintiff No. 2, who has projected her residential need for seeking eviction from remaining portion of the suit premises. During pendency of the suit, plaintiff No. 2 (i.e., the mother) died and on account of this subsequent event, the plaintiff/petitioner was well within his rights to bring the effect of such subsequent event on the need with respect to the suit premises on record by way of amendment. Hon'ble Supreme Court in the case of Rajesh Kumar Aggrawal (supra), has clearly observed in Paragraph 18:
In our view, since the cause of action rose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
11. Shri R.K. Sanghi, learned Counsel relying upon an unreported decision of this Court in Writ Petition No. 3098/2006 (B.K. Choubey v. Smt. Sashi Pandey), contended that the amendment to the impugned extent has been rightly rejected. Case cited by Shri Sanghi is quite distinguishable, inasmuch as, there was no involvement of subsequent events in that case.
12. In the present case, plaintiff No. 2, who was mother of plaintiff No. 1 has admittedly died and on account of this subsequent event, the application for amendment has been submitted. Further reliance placed on the Division Bench decision as reported in the case of Badridas Lalchand v. Raja Pratapgir AIR 1940 Nagpur 8 is also not available because in Nagpur case the character of the suit was sought to be converted in its entirety on different allegations which was inconsistent with the original plaint. In the case in hand, the claim is for ejectment and that would remain unaffected by the proposed amendment since permissible grounds for ejectment are proposed to be incorporated by way of amendment in place of impermissible grounds. Reliance on Salem Advocate Bar Association v. Union of India AIR 2005 SC 3353 is also of no avail since it docs not deal with the question involved in the present writ petition. Relying on Chaubey Sushil Chandra v. Raj Bahadur AIR 1977 Allahabad 259 it is contended that the proposed amendment would change the nature of the suit and cannot be legally allowed. Allahabad decision does not seem to be a good law in the light of Hon'ble Supreme Court decision in the case of Ragu Thilak D. John v. S. Rayappan and Ors. (2001) 2 SCC 472 wherein, it has been held that the amendment cannot be denied on the ground that it would change the nature of the suit.
13. Shri Sanghi further contended that the proposed amendment shall have the effect of withdrawing the admission contained in the plaint regarding the alleged business need of wife of plaintiff No. 1. This contention, too, will not detain this Court any more, because Hon'ble Supreme Court in the case of Baldev Singh and Ors. v. Manohar Singh and Anr. : AIR2006SC2832 has already held that it is always open to the parties to explain the admission by way of filing an application for amendment. A reference has also been made by the Apex Court to its another decision in the case of Estralla Rubber v. Dass Estate (P)Ltd. : AIR2001SC3295 .
14. In the present case, the contention of the petitioner is that impermissible grounds have been pleaded for seeking eviction and the same may be permitted to be deleted. There is absolutely no reason that why the Trial Court should insist the plaintiff to continue with the suit on impermissible grounds and to deny further the substitution of permissible grounds. This being so, learned Trial Judge is not found to have acted in conformity with the law on application for amendment laid down by the Apex Court from time to time.
14.1 Contention of Shri Sanghi is that in view of the limited scope of Article 227 of the Constitution of India, the impugned order does not call for interference. This contention is also without any substance. Article 227 is to be invoked when this Court finds manifest injustice. On account of the impugned order, the plaintiff/petitioner is being compelled to prosecute a suit on impermissible grounds. This would, obviously, lead to manifest injustice, moreso, because the learned Counsel, Shri Sanghi fairly conceded that the plaintiff may bring a fresh suit for eviction on the ground of his residential need which is tried to be incorporated by way of the disputed proposed amendment. Apex Court in the case of Sampath Kumar v. Ayyakannu and Anr. : [2002]SUPP2SCR397 , has clearly held that if the plaintiff is not debarred from instituting a new suit, there is no reason to refuse the amendment seeking the same relief in the pending suit. Likewise, in the case of Rajesh Kumar Aggrawal (supra), Hon'ble Supreme Court in Paragraph 18 has clearly observed that if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
15. In view of the aforesaid discussion, order Annexure P-5 to the impugned extent is, hereby, set aside. Remaining part of the application for amendment marked as Annexure P-3, which was rejected by the Trial Court stands allowed. Learned Trial Judge is directed to allow the petitioner to incorporate the proposed amendment in the plaint on payment of cost of Rs. 2,000/- (Rupees two thousand). No order as to costs.