Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 1373 of 2014 Bijay Kumar Jain, son of late Shambhu Dayal Jain, resident of Manoram Nagar, P.O. & P.S., Dhanbad, District Dhanbad ... … Petitioner Versus Smt. Dropadi Devi Singhania, wife of Sri Banwarilal Agarwala, resident of Kaveri Apartment, Shanti Bhawan Complex, Bank More, Dhanbad, P.O. Dhanbad, P.S. Bank More, District Dhanbad ... … Respondent CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. A.K. Das, Advocate For the Respondent : Mr. J.K. Pasari, Advocate Order No. 04 Dated: 23.09.2015 Aggrieved by order dated 06.02.2014 in Title (Eviction) Suit No. 02 of 2011 whereby, application for amendment in the plaint has been allowed, the present writ petition has been filed. 2. The petitioner is defendant in Title (Eviction) Suit No. 02 of 2011. The suit was filed for ejection of the defendant from the suit schedule property comprised in Plot No. 467, Khata No. 4 admeasuring about 22 decimals. The plaintiff asserted that she is absolute owner of 22 decimals of land over which the defendant constructed one big shed with two big rooms, six staff quarters and a groundwell and the same was given to the defendant on monthly rent. A licence agreement was also executed between the parties. The suit was filed on the ground of default in payment of rent and for a decree of arrears of rent. The defendant filed written statement denying relationship of landlord and tenant. The defendant took a plea that the suit premises came in his possession by virtue of an agreement to sale for which he paid consideration amount of Rs. 7,20,000/. In the pending suit, an application under Order VI Rule 17 C.P.C. was filed on 2 01.03.2012 which has been allowed vide impugned order dated 06.02.2014. Aggrieved, the petitioner has approached this Court. 3. Heard the learned counsel for the parties. 4. Mr. A.K. Das, the learned counsel for the petitioner submits that, through amendment application dated 01.03.2012 the plaintiff sought to change the schedule of the suit property which cannot be permitted after the defendant filed written statement. The suit was instituted for eviction of the defendant from the suit schedule premises which comprised only 22 decimals land whereas, through amendment application dated 01.03.2012, the plaintiff increased the area of the suit schedule property to 91 decimals. It is contended that the effect of the amendment in plaint is that the nature and character of the suit itself has been changed. 5. Per contra, Mr. J.K. Pasari, the learned counsel for the respondent submits that it is the specific stand of the plaintiff that initially, the suit schedule property comprised in ScheduleA was given to the defendant on licence basis. Subsequently, the defendant failed to pay the rent and accordingly, legal notice dated 24.01.2011 was issued. The defendant replied to legal notice dated 24.01.2011 however, he failed to disclose that he is in possession of 91 decimals of land. A First Information Report was also lodged on 07.04.2011 however, for the first time in the written statement, the defendant took a plea that the suit land comprises more than 90 decimals land. It is stated that the plea taken by the defendant that he came in possession of the suit schedule property by virtue of agreement to sale by paying consideration amount of Rs. 7,20,000/ over a period of 12 years in 144 monthly instalments is patently false in as much as, no date of agreement to sale has been disclosed by the defendant. Relying on decision in “Usha Devi Vs. Rijwan Ahamd & Ors.” 3 (2008) 8 SCC 717, the learned counsel for the respondent submits that even change in description in suit schedule property can be permitted by amendment. The learned counsel for the respondent refers to decision in “Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors.” (2006) 4 SCC 385 to submit that it is the duty of the court to decide the real question in controversy and for that all necessary amendments must be allowed. 6. I have carefully considered the submissions of the counsel for the parties and perused the documents on record. 7. It is not in dispute that the plaintiff claimed herself absolute owner of the land admeasuring 22 decimals in Plot No. 467 within Khata No. 4 situate at MouzaKangaloo, Mouza No. 128 within P.S. Gobindpur, Dhanbad. The suit schedule property is described in ScheduleA to the plaint. The suit was instituted on the ground of default in payment of rent. The plaintiff sought a decree of recovery of Khas possession by evicting the defendant from ScheduleA property and for a decree of Rs. 55,000/ being arrears of licence fee as detailed in ScheduleC to the plaint. The defendant in the written statement disputed the description of the suit schedule property and took a plea that he came in possession over the suit land by virtue of agreement to sale for which he paid Rs. 7,20,000/. The copies of licence agreement, legal notice and reply to legal notice have been brought on record. The defendant denied the landlordtenant relationship. It is thus, apparent from the materials brought on record that the suit was instituted for ejection of defendant from ScheduleA property on the ground of default in payment of rent. In the amendment application dated 01.03.2012, the plaintiff averred that for the first time after the written statement was filed, she came to know that the defendant has illegally grabbed the entire 91 decimals land by removing the fencing which was erected by the plaintiff in the year, 1970. It has further been 4 averred by the plaintiff that at the time when the written statement was filed, she was with her son in Karnataka and after she came back, she verified the facts and thereafter, she filed amendment application seeking permission to incorporate the following facts: (A) To add new para 12(A) That after institution of this suit the defendant has completely removed the fencing Iron wire with rods fixed by the plaintiff in 1970 to separate with other portion of the land, with ill motive and thereby the remaining lands measuring 69 decimals have also been amalgamated in the suit land involving the subject lands into total 91 decimals. (B) At page 6 Schedule 'A' will be amended as follows by deleting 3rd line onwards entirely: All that measuring 91 decimals (in place of 22 decimals) and plot no. 466, 467, 468, 469 and 470 within khata no. 4 bounded as follows: North: Coal depot of Hemant Agarwal; South: Land of Banwarilal Agarwal; East: Forest land and Road and land of Sri Dudhani; West: Land of Niraj Singh. 8. From the facts averred in application under Order VI Rule 17 C.P.C., it is apparent that the plaintiff has taken a plea that during the pendency of eviction suit, she was illegally dispossessed from another piece of land connected to ScheduleA property and the defendant came in illegal possession over the same. The assertion by the plaintiff in application dated 01.03.2012 constitutes a separate cause of action for which the plaintiff was required to file a separate suit on the allegation of her illegal dispossession. In the eviction suit seeking ejection of the defendant on the ground of default in payment of rent, the plaintiff cannot be permitted to change the description of the suit property on a different cause of action. The amendment has 5 completely changed the nature and character of the suit. In “Usha Devi Vs. Rijwan Ahamd & Ors.” (supra), a specific plea was taken by the defendant in the written statement that there is discrepancy in the description of the land. The Hon'ble Supreme Court permitted the amendment observing that there was discrepancy in the rentnote and averment in the plaint in respect of the suit property and the defendant himself took an objection that the plaintiff has not corrected the description of the property, which was the real question in controversy in the suit. In the present case, the controversy is only in respect of 22 decimals of land. Considering the fact that a new plea based on an entirely new cause of action has been sought to be incorporated through amendment, application under Order VI Rule 17 C.P.C. could not have been allowed. The impugned order dated 06.02.2014 suffers from serious error in law and accordingly, it is setaside. 9. The writ petition stands allowed. (Shree Chandrashekhar, J.) Manish/A.F.R