Case: K. Balakrishna Rao and Others Vs. Hazi Abdulla Sait and Others

The learned trial Judge does not state in the course of its judgment the date from which the proceeding was treated as a fresh suit. In the instant case, the suit itself was originally flied on March 2, 1964. The original defendant died on January 15, 1968. Even if the proceeding was treated as a fresh suit against defendants Nos. 2 to 10, it could be treated as such only from a date subsequent to January 15, 968 on which date the original defendant did since the contention of the plaintiff which found favour with the learned single judge and the Division Bench of the High Court was that defendants Nos. 2 to 10 who were legal representatives of the original defendant could not succeed to the tenancy right of the original defendant. In the instant case, since the plaintiff based his claim on the above contention in the year 1973 when he made the application for 1 amendment of the plaint, the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so. By his judgment the learned single Judge passed a decree for possession against defendants Nos. 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable. In the absence of such - specification, the plaintiff became entitled to claim damages under order 20, Rule 12 of the Code of Civil Procedure even from the date of the suit i.e. March 2, 1964. The Division Bench by its judgment affirmed that part of the decree of the trial court. The direction for payment, of mesne profits given in the decree of the trial court without specify the date from which damages should be computed could not have been passel consistently with its judgment in which it had been stated that the suit was being treated as a fresh suit. This defect, however is of a minor character. What is more fundamental in this case is that it was not permissible for the trial court to Treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into a fresh suit instituted against defendants NOS. 2 to 10 after the death of the original defendant, Seetharama Rao. An amendment of a plaint by inclusion of a new prayer or by addition of new parties can be made only where a suit is pending before a court in the eye of law. On June 10, 1964, the entire proceedings commenced with the plaint filed on March 2, 1964 stood terminated and there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer. We are of the view that the addition of new parties which took place after the death of Seetharama Rao and the amendment of the plaint in the year 197 3 and the passing of the decree by the trial Judge against defendants Nos. 2 to 10 who were not parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were all without jurisdiction. I t was, however, argued on behalf of the plaintiff before us relying upon the decision of this Court in B. Banerjee v. Anita. Pan that since the parties had gone to trial with open eyes knowing fully that the plaintiff was relying upon a cause of action which accrued in his favour after the death of the original defendant and on the basis of the amendment of the plaint in the year 1973, the decree passed by the trial court and affirmed by the Division Bench of the High Court should not be interfered with in the interests of justice and equity. It is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by t his Court having regard to the delay which had already ensued. It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case. To repeat, in the present case, the suit abated by reason of an ex press provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right . It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different. Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away.In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings. In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable. 21.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We have already referred to the object with which the Amending Act was passed and that was to give relief against unreasonable evictions and demands for unconscionable rates of rents to tenants of buildings which had been originally exempted from the operation of the principal Act. It is clear that while doing so t he Legislature gave relief also to persons against whom suits had been filed. WE think that the words "instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue , of clause (iii) of section 30 of the principal Act" should be construed in the context in which they appear as referring to a proceeding which had been instituted in the light of section 30(iii) of the principal Act which granted exemption in respect of the buildings referred to therein from the operation of the principal Act and any other construction would defeat the object of the Amending Act. lt is seen that in the instant case, the original plaint was filed on the basis that the tenancy had been terminated with effe ct from the expiry of February 29, 1964. The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of Rs. 6000/- per month from the date of the plaint till delivery of the vacant p ossession on the assumption that after the termination of the lease the original defendant No. 1 was not a tenant and was liable to pay damages and not the rent of Rs. 1, 680/- per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then. The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause (iii) of section 30 of the principal Act because in the absence of such exemption, no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the principal Act which provided that no tenant could be evicted from a building except in accordance with the provisions o f section 10 and section 14 to 16 thereof. The plaintiff could not also have asked for a decree for damages at Rs. 6000/- per month which he had claimed in the plaint but for such exemption. We are, therefore. Of the view that section 3 of the Amendi ng Act was applicable to the suit in question as it was a proceeding instituted in the City Civil Court on the ground that the building in question was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 thereof although no express allegation was made in the plaint to that effectBe that as it may, we are of the view that having regard to our finding that the suit stood abated on June 10, 1964 by virtue of the provisions of section 3 of the Amending Act, the original defendant, Seetharama Rao became a statutory tenant of the premises in question and he could not be evicted from the premises except in accordance with the procedure specified in the principal Act. The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date. The several decisions on which reliance was placed by the Division Bench for determining the character of possession of the original defendant, Seetharama Rao after the expiry of the notice given under section 106 of the Transfer of Property Act were not relevant for the purpose of this case because in none of them there was any occasion to consider the effect of a provision similar to section 3 of the Amending Act. We, therefore, do not agree with the finding of the Division Bench that t he original defendant was a trespasser in possession of the premises in question after June 10, 1964We also find it difficult to agree with the finding of the Division Bench that the premises in question was not a building as defined in sect ion 2(2) of the principal Act. The reason given by the Division Bench for holding that the building in question was not a building within the meaning of section 2(2) of the principal Act was that it was not a building which was either let or to be let separately for residential or non-residential purposesIt is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by t his Court having regard to the delay which had already ensued. It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case. To repeat, in the present case, the suit abated by reason of an ex press provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right . It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different. Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away.In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings. In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable.