Amendment of Pleadings : Broad Principles

Justice P. Sathasivam
Supreme Court of India

We have already dealt with a post on the Law relating to Amendment of Pleadings, and the different tests to be applied in cases of amendment of Plaint as against a Written Statement. The Supreme Court in State of Madhya Pradesh Vs. Union of India has re-itereated the law relating to amendment of pleadings under the Code of Civil Procedure, 1908. The Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles applicable in the case of amendment of plaint which are as follows: 

8. In order to consider the claim of the plaintiff and the opposition of the defendants, it is desirable to refer the relevant provisions. Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code') enables the parties to make amendment of the plaint which reads as under; 

"17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 

The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 

9. Inasmuch as the plaintiff-State of Madhya Pradesh has approached this Court invoking the original jurisdiction under Article 131 of the Constitution of India, the Rules framed by this Court, i.e., The Supreme Court Rules, 1966 (in short `the Rules) have to be applied to the case on hand. Order XXVI speaks about "Pleadings Generally". 

Among various rules, we are concerned about Rule 8 which reads as under: 

"The Court may, at any stage of the proceedings, allow either party to amend his pleading in such manner and on such terms as may be just, but only such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties." 

The above provision, which is similar to Order VI Rule 17 of the Code prescribes that at any stage of the proceedings, the Court may allow either party to amend his pleadings. However, it must be established that the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties. 

10. This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows: 

(i) Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, at para 5: 

"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment." 

(ii) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511, at para16: 

"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. 

In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: 

(a) of not working injustice to the other side, and 

(b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs." 

(iii) Usha Devi v. Rijwan Ahamd and Others, (2008) 3 SCC 717, at para 13: 

"13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05) 

"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings." 

(iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385, at paras 15 & 16: 

"15. The object of the rule is that the 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 the other side. 

16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties." 

(v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84, at para 63: 

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: 

(1) whether the amendment sought is imperative for proper and effective adjudication of the case; 

(2) whether the application for amendment is bona fide or mala fide; 

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; 

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation; 

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and 

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." 

The above principles make it clear that Courts have ample power to allow the application for amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.

Rejection of Highest Bid in Tender Matters : The Law

Justice G.S. Singhvi
Supreme Court of India

The Supreme Court in Himachal Pradesh Housing And Urban Development Authority Vs. Universal Estate, has examined the question whether a body can reject the highest bid received by it pursuant to a tender process. The Supreme Court while answering the question in the affirmative, has held as under;

16. We shall now consider whether the action of the Chief Executive Officer to reject the bid of respondent No.1 was arbitrary, unfair, unreasonable and amounted to violation of Article 14 of the Constitution, but before doing that we deem it proper to observe that the scope of judicial review in such matters is very limited and the Court will exercise its discretion only when it is satisfied that the action of the public authority is detrimental to public interest. In Air India Ltd. v. Cochin International Airport Ltd. (2000) 2 SCC 617, the Court while dealing with a matter involving award of contract, made it clear that the public authority is free not to accept the highest or the lowest offer and the scope of judicial review is confined to the scrutiny of decision making process, which can be annulled if the same is found to be vitiated by malafides, arbitrariness or total unreasonableness. Some of the observations made in the judgment are extracted below: 

"The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene." (emphasis supplied) 

In Jagdish Mandal v. State of Orissa (2007) 14 SCC 517, a two- Judge Bench, after taking note of the propositions laid down in Sterling Computers Ltd. v. M & N Publications Ltd. (1993) 1 SCC 445, Tata Cellular v. Union of India (1994) 6 SCC 651, Air India Ltd. v. Cochin International Airport Ltd. (supra) and B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. (2006) 11 SCC 548 observed: 

"Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction.  

Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: 

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; 

(ii) Whether public interest is affected. 

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." 

Meerut Development Authority v. Association of Management Studies (2009) 6 SCC 171 is a case arising out of the demand of the respondent for allotment of land. Initially, the respondent had given tender for allotment of plot measuring 37,000 square meters at the rate of Rs.500 per square meter. The appellant offered the plot at the rate of Rs.690 per square meter because other parties were prepared to take the land at that price. Later on, the Authority decided to issue open tender-cum-auction notice. Officer's Class Housing Society of the Canal Colony offered to pay Rs.775 per square meter. At that stage, the respondent indicated its willingness to purchase the land at Rs.690 per square meter. The appellant did not accept the respondent's prayer for transfer of land at that rate. Thereupon, the respondent filed writ petition for issue of a direction to the appellant to allot land at the rate of Rs.690 per square meter. By an interim order dated 7.5.2002, the High Court allowed the appellant to allot the land pursuant to advertisement dated 15.4.2002 but made it subject to the decision of the writ petition. Shri Pawan Kumar Agarwal gave an offer of Rs.1365 per square meter. This was accepted by the appellant. But, after some time, the allotment made in favour of Pawan Kumar Agarwal was cancelled. The High Court allowed the writ petition filed by the respondent and dismissed the one filed by Pawan Kumar Agarwal. This Court allowed the appeal and reversed the order of the High Court insofar as it related to the respondent and observed that the decision taken by the appellant was neither arbitrary nor vitiated due to mala fides and the respondent did not have any right to be allotted land. The Bench relied on the principles laid down in several decisions and reiterated the following observations in Kasturi Lal Lakshmi Reddy v. State of J&K (1980) 4 SCC 1: 

"... It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so." 

Scope & Ambit of First Appeal : The Law

Justice R.M. Lodha
Supreme Court of India

The Supreme Court in State Bank of India & Anr. v. M/s Emmsons International Ltd. & Ors. has reiterated the scope and ambit of a First Appeal, which involves re-appreciation of facts as well as law. While highlighting the broad principles evolved by previous judgments, the Supreme Court held as under;

20. Having regard to the controversy set up by the parties in the course of trial, in our view, it cannot be said that issue no. 5 is immaterial or finding of the trial court on that issue is inconsequential. The High Court was hearing the first appeal and, as a first appellate court it ought to have considered and addressed itself to all the issues of fact and law before setting aside the judgment of the trial court. The judgment of the High Court suffers from a grave error as it ignored and overlooked the finding of the trial court on issue no. 5 that the seller accepted the encashment of bill and document on collection basis. The High Court was required to address itself to issue no. 5 which surely had bearing on the final outcome of the case.

21. In Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., this Court held (at pages 188-189) as under :

........The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it......;

22. The above view has been followed by a 3-Judge Bench decision of this Court in Madhukar and Others v. Sangram and Others, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

23. In the case of H.K.N. Swami v. Irshad Basith (Dead) by LRs., this Court (at pages 243-244) stated as under :

The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title..........

24. Again in Jagannath v. Arulappa and Another while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court (at pages 303-304) observed as follows:

2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion. In the present case, we find that the High Court has not adverted to many of the findings which had been recorded by the trial court. For instance, while dismissing the suits filed by the respondents, the trial court had recorded a finding on Issue 5 that the defendant-appellant had taken actual possession of the suit properties in Execution Petition No. 137 of 1980 arising out of OS No. 224 of 1978. Without reversing this finding, the High Court simply allowed the appeals and decreed the suits filed by the plaintiff-respondents in toto. Similarly, there are other issues on which findings recorded by the trial court have not been set aside by the High Court. The points involved in the appeals before the High Court required a deeper consideration of the findings recorded by the trial court as well as the evidence and the pleadings on record.

25. The decided cases of this Court in Jagannath and H.K.N. Swami were noticed by this Court in a later decision in the case of Chinthamani Ammal v. Nandagopal Gounder and Another.

26. In our view, the High Court failed to follow the fundamental rule governing the exercise of its jurisdiction under Section 96 of the Code of Civil Procedure, 1908 that where the first appellate court reverses the judgment of the trial court, it is required to consider all the issues of law and fact. This flaw vitiates the entire judgment of the High Court. The judgment of the High Court, therefore, cannot be sustained.

'Trespass' - Definition and Concept : The Law

Justice R.M. Lodha
Supreme Court of India

The Supreme Court in Laxmi Ram Pawar Vs. Sitabai Balu Dhotre has examined the definition and meaning of the term 'tresspasser' in the context of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. While relying on various judicial precedents the Supreme Court held as under;

10. A `trespass' is an unlawful interference with one's person, property or rights. With reference to property, it is a wrongful invasion of another's possession. In Words and Phrases, Permanent Edition (West Publishing Company), pages 108, 109 and 115, in general, a `trespasser' is described, inter alia, as follows: 

"A "trespasser" is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. In re Wimmer's Estate, 182 P.2d 119, 121, 111 Utah 444." 

"A "trespasser" is one entering or remaining on land in another's possession without a privilege to do so created by possessor's consent, express or implied, or by law. Keesecker v. G.M. Mckelvey Co., 42 N.E. 2d 223, 226, 227, 68 Ohio App. 505. 

" ................................ "A "trespass" is a transgression or wrongful act, and in its most extensive signification includes every description of wrong, and a `trespasser" is one who does an unlawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. Carter v. Haynes, Tex., 269 S.W. 216, 220." 

11. In Black's Law Dictionary (Sixth Edition), 1990, page 1504, the term `trespasser' is explained as follows : 

"Trespasser. One who has committed trespass. One who intentionally and without consent or privilege enters another's property. One who enters upon property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in performance of any duties to owner, but merely for his own purpose, pleasure or convenience". 

12. In Halsbury's Laws of England; Volume 45 (Fourth Edition), pages 631-632, the following statement is made under the title `What Constitutes Trespass to Land'. 

"Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another's land, or sends filth or any injurious substance which has been collected by him on his own land onto another's land." 

In the same volume, page 634, under the title `trespass ab initio', the legal position is stated thus : 

"If a person enters on the land of another under an authority given him by law, and, while there, abuses the authority by an act which amounts to a trespass, he becomes a trespasser ab initio, and may be sued as if his original entry were unlawful. Instances of an entry under the authority of the law are the entry of a customer into a common inn, of a reversioner to see if waste has been done, or of a commoner to see his cattle. To make a person a trespasser ab initio there must be a wrongful act committed; a mere nonfeasance is not enough." 

The aforesaid statement takes into consideration the Six Carpenters' case1 wherein the general rule given is this, `when entry, authority or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio'. 

13. In Law Lexicon, The Encyclopaedic Law Dictionary by P. Ramanatha Aiyar, 2nd Edition, Reprint 2000, page 1917, the word `trespass' is explained by relying upon Tomlins Dictionary of Law Terms as follows: 

"Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or the country in which we live; whether it relates to a man's person or his property. Therefore beating another is a trespass; for which an action of trespass in assault and battery will lie. Taking or detaining a man's goods are respectively trespasses, for which an action of trespass on the case in trover and conversion, is given by the Law; so, also, non- performance of promises or undertakings is a trespass, upon which an action of Trespass on the case in assumesit is grounded: and, in general, any 1 (1610) 8 Co Rep 146 misfeasance, or act of one man, whereby another is injuriously affected or damnified, is a transgression, or trespass, in its largest sense; for which an action will lie." 

14. In Salmond on the Law of Torts, 17th Edition by R.F.V. Heuston, 1977, page 41, the expression, `Trespass by remaining on land' is explained in the following manner : 

"Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased. To refuse or omit to leave the plaintiff's land or vehicle is as much a trespass as to enter originally without right. Thus, any person who is present by the leave and licence of the occupier may, as a general rule, when the licence has been properly terminated, be sued or ejected as a trespasser, if after request and after the lapse of a reasonable time he fails to leave the premises." 

Under the title `Continuing Trespasses', page 42, it is stated: 

"That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrong doer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious. It is well-settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff's land. Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing; successive actions will lie from day to day until it is so removed; and in each action damages (unless awarded in lieu of an injunction) are assessed only upto the date of the action. Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law." 

15. Insofar as the definition of `occupier' in Section 2(e) of the 1971 Act is concerned, it must be immediately stated that the said definition is not exhaustive but inclusive. Clauses (i) to (iv) of Section 2(e) definitely do not embrace within itself a trespasser but Clause (v) that reads, `occupier' includes `any person who is liable to pay to the owner damages for the use and occupation of any land or building' would surely take within its fold and sweep a trespasser since such person is not only liable for damages for an act of trespass but also liable to pay to the owner damages for the use and occupation of any land or building trespassed by him. It is immaterial whether damages for the use and occupation are in fact claimed or not by the owner in an action against the trespasser. By no stretch of imagination, a trespasser could be taken out of the definition of `occupier' in Section 2(e)(v) of the 1971 Act. Clause (v), in our opinion, includes a person who enters the land or building in possession of another with permission or consent but remains upon such land or building after such permission or consent has been revoked since after revocation of permission or consent, he is liable to pay damages for unauthorised use of land or building. The Division Bench of the Bombay High Court in Taj Mohamed Yakub v. Abdul Gani Bhikan has taken the view that a trespasser is included in the definition of `occupier' under Section 2(e)(v) of the 1971 Act which, we hold, is the correct view. The contrary view taken by a Single Bench of the Bombay High Court in Shankar Dagadu Bakade and Ors. v. Bajirao Balaji Darwatkar is not right on this point and has rightly been overruled by the Division Bench in Taj Mohamed Yakub. Strangely, the first appellate court relied upon Shanker Dagadu Bakade's case3 which has already been overruled in Taj Mohamed Yakub and distinguished Taj Mohamed Yakub on superficial reasoning without properly appreciating the statement of law exposited therein. The High Court, unfortunately, failed to notice such grave error in the judgment of the first appellate court. 

16. Once it is held that a trespasser is included in the definition of `occupier' in Section 2(e)(v) of the 1971 Act, what necessarily follows is that before initiation of any suit or proceeding for eviction of such trespasser, the previous written permission of the Competent Authority is required as mandated by Section 22(1). Section 22(1) starts with non obstante clause and it is clear from the provision contained in clause (a) thereof that no person shall institute any suit or proceeding for obtaining any decree or order for eviction of the occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier or for both without the previous written permission of the Competent Authority. The use of words `no' and `shall' in sub-section (1) of Section 22 makes it abundantly clear that prior written permission of the Competent Authority for an action under clause (a) thereof is a must. The role of the Competent Authority under the 1971 Act is extremely important as the legislature has conferred power on him to carry out execution of works in improvement of the slum. Sub-Section (2) of Section 22 requires the person desiring to obtain the permission to make an application in writing to the Competent Authority. As per sub- section (3) on receipt of such application, the Competent Authority by an order in writing may either grant or refuse to grant such permission after giving an opportunity to the parties of being heard and after making such summary enquiries into the circumstances of the case as it thinks fit. Sub-section (4) of Section 22 requires the Competent Authority to take into account the factors set out therein for granting or refusing the permission. These provisions contained in Section 22 are salutary in light of the scheme of 1971 Act and have to be followed. It has to be held, therefore, that for eviction of a trespasser who is `occupier' within the meaning of Section 2(e)(v) of 1971 Act from the land or building or any part thereof in a declared slum area, the written permission of the Competent Authority under Section 22(1)(a) is mandatorily required. 

17. Insofar as present case is concerned, the first respondent set up the case in the plaint that the appellant was a trespasser in the subject room. The first appellate court has also recorded a categorical finding, which has not been disturbed by the High Court, that the appellant was occupying the subject room as trespasser. In the circumstances, the suit was clearly not maintainable for want of written permission from the Competent Authority and was rightly dismissed by the trial court.