IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 494/2003 Reserved on: 20.7.2011 Decided on:28.7.2011 ___________________________________________________ Bal Raj Sahni. …Appellant. Versus Krishan Kumar & others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. K.D. Sood, Advocate. For the Respondents : Mr. Subhash Sharma, Advocate for respondent No.1. None for respondents No.2 and 3. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 16.9.2003 rendered by the learned District Judge, Una in Civil Appeal No.43 of 1999. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that plaintiff-respondent (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit for permanent injunction against Krishan Gopal Khazanchi and Raj Kumar, defendants No.1 and 2 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 (hereinafter referred to as ‘defendants No.1 and 2’ for convenience sake) as mentioned in the trial court. According to the averments contained in the plaint, Krishan Gopal Khazanchi, defendant No.1, was owner of the shop and the plaintiff was in possession as tenant in the disputed shop on monthly rent of ` 150/- since 1975. He had been running the business of iron merchant and hardware goods. He had paid rent upto July, 1988, but defendant No.1 did not issue the receipt from March, 1988 to July, 1988. According to the averments contained in the plaint, defendants No.1 and 2, Krishan Gopal Khazanchi and Raj Kumar had joined hands with each other with the sole aim to eject the plaintiff forcibly from the disputed shop and were also threatening to cut the locks put by the plaintiff. During the pendency of the suit, the shop was leased out by Krishan Gopal Khazanchi to defendant No.3 Bal Raj Sahni, who was subsequently added as party by moving an application under order 1 rule 10 of the Code of Civil Procedure on 19.2.1993. This application was allowed on 14.5.1993. According to the plaintiff, goods lying in the shop were also removed by defendant No.1 in connivance with defendant No.3, namely, Bal Raj Sahni. In these circumstances, the plaintiff has prayed for injunction restraining the defendants from ousting him and taking forcible 3 possession of the suit property and to grant any such relief as court may deem fit. 3. Defendant No.1 contested the suit. According to him, the shop remained closed for 7½ years. The plaintiff and his father came to him and told that they have closed their business for the last 1½ years and they no more require the demised premises and in case the defendants pay ` 20,000/- as Pagari’ and give up the rent from March, 1988 to May, 1988, the plaintiff was ready to relinquish the tenancy and to give up the vacant possession of the premises. Defendant No.1 paid a sum of ` 20,000/- in cash to the plaintiff and also gave up rent of three months without getting any receipt. Plaintiff and his father on the same day sold the iron articles to Kawaries and wooden fittings to Achhar Singh, who appeared as DW-4. Thereafter, defendant No.1 rented out the premises in dispute to Harmail Singh on 8.1.1988 @ Rs. 600/- per month and the rent deed Ex. D-1 was executed on 8.8.1988. Harmail Singh remained in possession of the shop in dispute for a period of six months and thereafter handed over the vacant possession to defendant No.1. Thereafter Bal Raj Sahni came in possession of the shop and was running his business. Initially, the issues were framed on 27.8.1992 and thereafter more issues were framed on 10.5.1995. 4 4. Plaintiff filed replication to the written statement. Trial court decreed the suit on 27.1.1999 to the effect that the plaintiff was a tenant in the disputed shop and was entitled to get its possession by eviction of defendant No. 3 from the tenanted premises and was entitled to continue as such and defendants were restrained not to interfere in his possession till he was ejected from the disputed shop in accordance with law. Defendants, namely, Bal Raj Sahni and Krishan Gopal Khazanchi preferred an appeal before the District Judge, Una. He dismissed the same on 16.9.2003. Hence the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the suit as framed was maintainable and the plaintiff was entitled to decree for possession when only relief of injunction was asked for? 2. Whether the District Judge exercised judicial discretion in rejecting the application under order 41 rule 27 C.P.C. when a case for additional evidence was made out? 3. Whether the suit was not properly valued for the purpose of court fee and jurisdiction and the relief of possession could not be granted by valuing the suit at ` 130/- in respect of the shop. 5. Mr. K.D. Sood, on the basis of substantial questions of law framed, has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable in the eyes of law. According to him, 5 the plaintiff has filed a suit only for injunction; however, decree for possession has been passed in favour of the plaintiff by the trail court, which has been affirmed by the learned District Judge. He then argued that the learned trial court has never allowed any application for amendment, however, as per order dated 11.5.1993, trial court has permitted the plaintiff to file amended plaint. In other words, his submission is that amendment could only be allowed if an application under order 6 rule 17 of the Code of Civil Procedure was filed and not otherwise. 6. Mr. Subhash Sharma has supported the judgments and decrees passed by both the courts below. According to him, there was no illegality in the order dated 11.5.1993 passed by the trial court. The amended plaint was permitted to be filed. He then argued that defendants have not taken any objection to the amended plaint. 7. I have heard the learned counsel for the parties and have perused the records carefully. 8. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. The suit has been filed for injunction by the plaintiff. The prayer clause reads thus: 6 “That the plaintiff therefore prays that a decree for the issuance of permanent injunction restraining the defendants from ousting the plaintiff and taking forcible possession by way of locking the shop shown red in colour denoted by letters A B C D in the site plan attached with the plaint situated near the Central Bank of India, in the Main Bazar Una, District Una, be passed with costs in favour of the plaintiff and against the defendants; or such other relief may kindly be granted to which the plaintiff be deemed to be entitled under the circumstances of the case.” 10. Defendants have filed written statement to the same. Thereafter an application was filed under order 1 rule 10 of the Code of Civil Procedure by the plaintiff for impleading present appellant Bal Raj Sahni on 19.2.1993. Reply to the same was filed on 30.3.1993. The application preferred under order 1 rule 10 of the Code of Civil Procedure was allowed by the trial court on 11.5.1993. However, the learned trial court after allowing the application has also permitted the plaintiff to file amended plaint. Consequently, the plaint was filed whereby para 5 was added but surprisingly, relief clause remained the same that a decree for the issuance of permanent injunction restraining the defendants from ousting the plaintiff and taking forcible possession by way of locking the shop was prayed for. Defendant No.1 Krishan Gopal Khazanchi and Bal Raj Sahni filed written statements to the same. Defendant Raj Kumar did not file written 7 statement to the amended plaint since his name was already struck off by the trial court on 31.8.1988. The trial court passed the decree in favour of the plaintiff by holding him a tenant and was also held entitled for possession by evicting Bal Raj Sahni. Learned District Judge has noticed in paragraph 24 of his judgment that initially the plaintiff had filed suit for permanent injunction but when defendant No.1 took forcible possession the suit was converted to suit for possession. This finding recorded by the learned District Judge is contrary to the record. The suit was filed for permanent injunction and it remained as such even after the plaint was amended. 11. Plaintiff has appeared as PW-1. According to him, the shop was rented out to him in the year 1975 @ ` 150/- per month. He was running business of iron bars, hardware etc. He has placed on record receipts Ex.P-1 to P-4. According to him, he has not vacated the shop. He was also carrying business at Ladakh. When he came back, he came to know that Raj Kumar has been inducted as tenant. He entered into a compromise with Raj Kumar Ex.P-5. When he again came back from Ladakh in the year 1990-91, he came to know that lock of his shop has been broken and the material from his shop was also taken away and the shop was rented out to the present 8 appellant Bal Raj Sahni. He also lodged F.I.R. with the police. According to him, he had never vacated the shop, though he has admitted that he has also constructed a building at a distance of about 300-400 yards from the disputed shop. He has denied that Krishan Gopal has paid him a sum of ` 20,000/- and also waived of the rent of few months to vacate the shop. 12. PW-2 Sham Kumar is one of the marginal witnesses to Ex.P-5. PW-3 Balraj Sharma is also marginal witness of Ex.P-5. 13. Defendants have produced number of witnesses. DW-1 Krishan Gopal has deposed that the shop was closed for 7½ years and thereafter, he was approached by the plaintiff and his father that in case they are paid a sum of ` 20,000/- and waived off the rent, they would vacate the shop. It happened in the second week of June, 1988. Thereafter, he paid a sum of ` 20,000/- and waived off the rent. He did not obtain any receipt. Thereafter, he inducted one Sh. Harmail Singh vide rent note Ex.D-1 dated 8.7.1988. Harmail Singh remained in shop for few months and thereafter he inducted Bal Raj Sahni as tenant vide rent note Ex.D-2 on monthly rent of ` 800/- on 14.8.1991. 14. DW-3 Gurmail Singh was one of the witnesses to rent note Ex.D-1. DW-4 is Achhar Singh. He has 9 stated that the plaintiff and his father had sold the fitting of the shop to him for ` 16,000/-. 15. DW-5 is Harmail Singh. He took the shop from Krishan Gopal on 8.7.1988 on monthly rent of ` 600/-. Vide rent note Ex.D-1. However, he remained in possession for about 3-4 months and thereafter he handed over the possession of the shop to Krishan Gopal. 16. DW-6 Bal Raj Sahni has deposed that the shop was rented out in the month of July/August, 1989 on the monthly rent of ` 800/-. The shop in question was purchased by his wife on 9.9.1996. This is the entire evidence led by the parties. 17. It is not in dispute that no application under order 6 Rule 17 of the Code of Civil Procedure was ever filed by the plaintiff seeking amendment to the plaint. Only application under order 1 rule 10 of the Code of Civil Procedure was preferred by the plaintiff on 19.2.1993, to which reply was filed by the defendants. The application was allowed on 11.5.1993. The learned trial court could not permit the plaintiff to file amended plaint. In case amendment was to be sought, separate application under order 6 rule 17 of the Code of Civil Procedure was required to be filed and decided by the trial court. Trial court has rightly allowed the application under order 1 rule 10 of the Code of Civil Procedure as far as the impleadment of Bal 10 Raj Sahni was concerned. The order permitting the amendment of plaint to be filed by the plaintiff was erroneous and unauthorized. Amended plaint was filed by the plaintiff whereby, as noticed above, para 5 was inserted to the effect that during the pendency of the suit, defendant No.1 has leased out the demised premises to Bal Raj Sahni by breaking open the lock. He received this information in October, 1991 and also filed F.I.R. No. 370/1991 dated 16.10.1991 Ex.PW-4/A. 18. Now, as far as the relief clause is concerned, it always remained the suit for permanent injunction. The plaintiff in the amended plaint has also prayed for a decree of permanent injunction restraining the defendants. He has never prayed for possession. The written statement was also filed by defendants Krishan Gopal and Bal Raj Sahni. The trial court came to the conclusion that the plaintiff has never handed over the vacant possession to defendant Krishan Gopal. According to the trial court, defendant Krishan Gopal has failed to establish that he had paid a sum of ` 20,000/- to the plaintiff and also waived off the rent. According to the findings recorded by the trial court, defendant No.1 was an educated person and was required to obtain a receipt from the plaintiff in case he had paid a sum of ` 20,000/-. According to the trial court, plaintiff has never 11 relinquished the tenancy. Learned District Judge has also affirmed the findings recorded by the trial court. He has dealt with the evidence led by the parties in detail. He has also come to the conclusion that since the plaintiff has never relinquished the tenancy. The learned District Judge has also not looked into the records at the time of hearing of the appeal. It was necessary for him to go through the orders passed by the trial court to see whether the application under order 6 rule 17 of the Code of Civil Procedure had been preferred by the plaintiff or not. He has recorded the findings in para 24 that the suit was converted into suit for possession. No application was preferred by the plaintiff for amendment of the plaint and as such the order, as noticed above, by the trial court to amend the plaint was erroneous. 19. What emerges from the facts enumerated hereinabove is that the suit was simplicitor for injunction but the trial court has decreed the same for possession. This was not permissible under law. This relief was never sought for by the plaintiff even in the amended plaint. 20. Learned Single Judge of Orissa High Court in Khali and others versus Sadhaba Bewa and others, AIR 1967 Orissa 58 has held that in no circumstance amendment of plaint should be suggested and allowed by a judge, merely because evidence and pleadings do not 12 tally. Learned Single Judge has further held that amendment if allowed new trial would begin on various issues of a character not already pleaded. Learned Single Judge has held this action of Munsif wholly illegal and without jurisdiction. Learned Single Judge has held as under: “2. The order of the learned Munsif is wholly illegal and without jurisdiction. A Judge hardly acts as a lawyer. It was not a part of the duty of the learned Munsif to have sympathy for the plaintiff for the conflict arising between the pleadings and the evidence if the evidence is not in consonance with the pleadings, it may be thrown out. It is open to the Judge also to accept the evidence if the conflict is not of a e=serious nature and both can be reconciled. But in no circumstance an amendment should be suggested and allowed by a Judge, merely because evidence and the pleadings do not tally. The learned Munsif failed to realize that by the amendment allowed a new trial would begin on various new issues regarding existence of right of easement of a character not already pleaded.” 21. It is settled law by now that when a case is covered by specific provision, the parties cannot resort to section 151 of the Code of Civil Procedure. The Division Bench of Madras High Court in A.K. A. CT. V. CT. Meenakshisundaram Chettiar versus A.K.A. CT.V. CT. Venkatachalam Chettiar, AIR 1980 Madras 105 has held that it is not possible to agree with the learned counsel for the respondent that resort can be had to section 151 of the Code if a case is not covered by order 6 13 rule 17 of the Code for amendment of the plaint. The Division Bench has further held that the resort cannot be had to section 151 where the case is not covered by the specific provisions made in order 6 rule 17 of the Code for amendment of the pleadings. The Division Bench has held as under: “12. In the second decision Ramkarandas Radhavallabh V. Bhagwandas Dwarkadas (1965) 2 SCR 186, it has been observed:- “It has been observed by this Court in Manohar Lal V. Harilal (1962 Supp (1) SCR 450) ' the inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure'. This is a well recognized principle. “Rule 4 of Order 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under Order 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to Section 151 for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under Section 151.” It would appear from the aforesaid later decisions of the Supreme Court that the dissenting view of Shah, J., as he then was, expressed in Manohar Lal v. Harilal referred to above, has come to be accepted by the Supreme Court. Therefore, it is not possible to agree with the learned counsel for the petitioner that resort can be had to Section 151 of the Code if a case is not covered by Order 6 Rule 17 of the Code for amendment of the plaint. We agree with the learned counsel for the respondent and hold that resort cannot be had to Sec. 151 where the case is not covered by the specific provisions made in Order 6, 14 Rule 17 of the Code for amendment of the pleadings. Rule 17 is in order 6 dealing with pleadings generally.” 21. Accordingly, in view of the observations and discussions made hereinabove, the Regular Second Appeal is allowed. The judgments and decrees passed by both the courts below are set aside. The suit of the plaintiff is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 28.7. 2011 *awasthi*