IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10829 of 2011 Eshamul Haque Versus Suresh Sah ---------------------------------- with Civil Writ Jurisdiction Case No.10863 of 2011 Eshamul Haque Versus Basudeo Das ---------------------------------- with Civil Writ Jurisdiction Case No.10904 of 2011 Eshamul Haque Versus Ram Dayal Das ---------------------------------- O R D E R 07. 08.12.2011. 1. I have heard the learned counsel, Mr. Mukesh Kumar on behalf of the petitioner in all the above writ applications and the learned counsel, Mr. Surya Narayan Roy on behalf of the respondent in all the above writ applications. 2. Three eviction suits were filed by the petitioner who is plaintiff in all the 3 eviction suits being eviction suit No.4 of 2008, 6 of 2008 and 5 of 2008. The said eviction suits were filed against the 3 tenants who are the respondents in these 3 applications. The petitioner is same. Only the tenants are different. The point for determination in these 3 writ applications are same and the learned counsels for both the parties are same and, therefore all the 3 writ applications are heard together in - 2 - admission matter. 3. By the impugned order respectively, the application filed by the plaintiff praying for conversion of the eviction suit to a regular title suit has been rejected by the Court below on the ground that the amendment application has been filed after commencement of trial and at a very belated stage, particularly when the argument is going on. 4. The learned counsel for the petitioner submitted that the defendants in all the eviction suits claimed title to the suit property denying the relationship of landlord and tenant. Therefore, the real controversy between the parties was as to whether there was relationship of landlord and tenant between the parties or that whether the claim of the defendant regarding title to the suit property is correct or not. In such view of the matter, the petitioner filed the application for conversion of the eviction suit as title suit because title has been claimed by the defendant and knowing this fact the parties entered trial. Therefore, there will be no prejudice to the defendant but the learned Court below rejected the application only on the ground that at belated stage after conclusion of the case, the application has been filed. The learned counsel further submitted that the petitioner is not praying for amendment in the pleading. The petitioner is not introducing any new case. However, - 3 - instead of leveling the application under Section 151 C.P.C., he levelled the application under Order 6 Rule 17 C.P.C. which has been rejected by the Court below without considering this fact. 5. On the other hand, the learned counsel for the appellant submitted that no amendment can be allowed after commencement of trial in view of Proviso to Order 6 Rule 17 C.P.C. which is mandatory. The petitioner did not file the amendment application in the earlier stage and if amendment is allowed then the nature of the suit will be changed. 6. Admittedly, the plaintiffs filed the suit for eviction under B.B.C. Act. The defendant filed the written statement and claimed title to the suit property and he denied the relationship of landlord and tenant. Both the parties were knowing the case of each other and have adduced their evidence in support of their respective pleadings. The plaintiff never prayed for any amendment in the plaint. He only prayed that the cause title of the eviction suit may be converted to title suit. In view of the above fact, when there was no prayer for amendment in the pleading, in my opinion, Order 6 Rule 17 is not a proper provision because admittedly, the plaintiff is not praying for amendment of the pleading. Moreover in 2011 B.B.C.J. (4) page 107 (Mahadev Govind Ghadge, the Apex Court considering the provisions of - 4 - C.P.C. after amendment in the year 2002 has held that the Code of Civil Procedure is a law relating to procedure and procedural law is always intended to facilitate the process of achieving the ends of justice. The Courts would normally favour the interpretation which will achieve the said object. The laws of procedure are meant to regulate effectively assist and aid the object of doing substantial and real justice and not to fore close even an adjudication of merits of substantial rights of citizen under personal law, property and other laws. Procedure has always been viewed as the handmade of justice and not meant to hamper the cause of justice or sanify miscarriage of justice. Procedural law is not to be a tyrant but servant not a obstruction but an aid to a justice. 7. In 2001 (3) P.L.J.R. 233 Harihar Prasad Vs. Biresh Manjhi, this Court has held that in a suit for eviction if the title is challenged then to avoid further litigation, the plaintiff can transform it into a regular tile suit for the purpose of declaration of title and for that he is to pay advelorum court fee. Admittedly, in the present case at our hand, the defendant challenged the relationship of landlord and tenant and claimed title on himself. Therefore, if now plaintiff will not be allowed to convert this eviction suit then he will be compelled to file another suit claiming declaration of title. In my opinion, this cannot be the intention of legislature. - 5 - 8. In 2007 (3) P.L.J.R. 778 Balram Medical Hall Vs. Rajednra Prasad, this Court again held that Court can permit the eviction suit to be converted into a title suit so that all matters in controversy between all concerned parties may be settled once and for all. It appears that although the learned Court below noticed all these decisions but interpreted the same as otherwise and rejected the application only on the ground of delay, i.e., considering the Proviso to Order 6 Rule 17 C.P.C. The learned Court below has not at all considered the fact that whether the prayer made by the petitioner is the real question in controversy between the parties for decision. The learned Court below has not considered that if the prayer for conversion of the suit is refused then the plaintiff will be compelled to file another suit. The aim of amendment of Order 6 Rule 17 is not meant for multiplicity of proceedings. Moreover, in view of the Hon’ble Apex Court, the provision as contained in Order 6 Rule 17 is procedural law and the Proviso added to which is not a complete bar. Even if after the proviso is added, the Court has the jurisdiction to allow amendment if the amendment sought for is not prejudicial to the respondent and if it is allowed, the controversy between the parties will be decided once for all. Here, in the present case at our hand, there is no question of prejudice is caused to the defendant because the defendant themselves have claimed title. Moreover, the plaintiff is not praying for - 6 - amendment in the fact. His prayer is only to convert the eviction suit to title suit. 9. In view of my above discussion, in my opinion, the Court has the jurisdiction to convert the eviction suit to a title suit if the facts requires to do so and this discretion can also be exercised under Section 151 of the Code of Civil Procedure considering the facts of each case. Only on the ground of delay, the amendment can not be refused. 10. In view of the above facts and circumstances of the case, in my opinion, the learned Court below has not properly appreciated the ratio decidendi decided by the above decisions and thereby failed to exercise a jurisdiction vested in it by law. 11. In the result, all the 3 writ applications are allowed and the impugned order passed by the Court below in the aforesaid 3 eviction suits are set aside and the prayer made by the plaintiff for conversion of eviction suit to title suit is allowed. Patna High Court, Patna The 8thday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)