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Madhya Pradesh High Court · body

2001 DIGILAW 49 (MP)

Anil v. Krishna Kumar

2001-01-11

A.K.GOHIL

body2001
Short Note The applicant has filed this revision petition under section 115 of the Code of Civil Procedure against the order dated 24.4.2000 passed by Civil Judge, Class-II, Mandsaur in Regular Civil Suit No. 85-A of 1995 whereby rejected the amendment application on cost of Rs. 100/- and has closed the right to lead evidence in defence. The submission of the learned counsel for the applicant/defendant is that on 24.4.2000 the case was listed for the evidence of the defendant but he filed an application for amendment in the written statement under Order VI Rule 17 of the Code pleading therein that the Non-applicant-plaintiff has acquired an alternative accommodation for his business purposes adjoining to the suit shop, therefore, his need has come to an end. This application was opposed and the trial Court has illegally rejected this application with cost of Rs. 100/- on the ground that these facts were in the knowledge of the defendant and they are not based on any subsequent event and the application has not been filed bonafidely, the defendant is trying to delay the proceedings and has also closed the right of the defendant to lead evidence. The applicant has prayed for setting aside the impugned order under Revision. In reply the learned counsel for Non-applicant-plaintiff supported the order of the trial Court. I have heard the learned counsel for the parties and perused the amendment application. In the amendment application the defendant has clearly pleaded that the plaintiff has already converted a room of 12'x16' into a shop adjoining to the suit shop after filing of the suit. The Court has stated in its order that these facts were in the knowledge of the defendant from the very beginning. From the order of the Court it is not clear whether such pleading is already on record. Accordingly, I am of the view that the approach of the trial Court in rejecting the application was not justified. I have also perused the written-statement which is on record and no where this fact of availability of new-alternative accommodation has been pleaded in the written-statement. Therefore, prima-facie it appears that the trial Court has not properly considered the amendment application of the defendant and has wrongly rejected the same. I have also perused the written-statement which is on record and no where this fact of availability of new-alternative accommodation has been pleaded in the written-statement. Therefore, prima-facie it appears that the trial Court has not properly considered the amendment application of the defendant and has wrongly rejected the same. The provisions of Rule 17 of Order VI of the Code are very clear that 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 necessary for the purposes of determining the real questions in controversy between the parties. This is a suit for eviction from the tenanted premises on the ground of bonafide need in which the defendant can always plead that the plaintiff is having an alternative accommodation and, therefore, his need is not genuine. If during the pendency of the suit plaintiff has acquired any alternative accommodation the same facts can also be pleaded during the pendency of the suit and the defendant can always show that by acquiring the alternative accommodation either the need of the plaintiff has come to an end or the plaintiffs need is not bonafide. It is a rule of the pleadings that all the essential material facts should be pleaded so that the other party may not be taken by surprise. When an essential material fact came to the knowledge after filing of the suit, the same can be pleaded by way of amendment because the pleadings of the parties form the foundation of their case and it is necessary for the defendant to plead the material facts to constitute his defence. The provisions regarding amendment in the pleadings are meant for providing the ends of justice and not for defeating them. In view of the aforesaid principle governing the amendment and the pleadings, the trial Court has not cared to appreciate the material facts as well as the provisions of law while dismissing the application of the defendant. The Court has no power to consider the merits of the proposed amendment al the stage of consideration of the question whether the amendment should be allowed or not. In fact Rule 17 of Order VI of the Code confers a wide discretion upon the Courts to allow the amendment of pleadings at any stage of the proceedings. The Court has no power to consider the merits of the proposed amendment al the stage of consideration of the question whether the amendment should be allowed or not. In fact Rule 17 of Order VI of the Code confers a wide discretion upon the Courts to allow the amendment of pleadings at any stage of the proceedings. Amendment can also be allowed at a very late stage, some time even at the appellate stage. Therefore, a prayer for amendment cannot be treated as malafide on the mere ground that it is made at a very late stage. As a rule, all amendments are to be allowed which are necessary for determination of the real controversy in the suit. The trial Court has not only rejected the amendment application but has also imposed a cost of Rs. 100/- and has also closed the right of the defendant to lead evidence. Obviously this order is a penal order and it is expected from the trial Court to carefully examine the amendment applications and its consequences and see that if the amendment is relevant, it should be allowed and a reasonable opportunity be granted to the defendant to lead evidence. The trial Court has not seen that the plaintiff has closed his evidence only on 13.10.1999 and thereafter on three hearings the Presiding Officer himself was on leave. Therefore, the order of closing the right to lead evidence of the defendant also cannot be termed as a legal order. In view of the above and under the facts and circumstances of the case, I am of the view that this revision deserves to be allowed and is accordingly allowed. The impugned order passed by the trial Court on 24.4.2000 is hereby set-aside. The delay in filing the application for amendment can be compensated in terms of cost and accordingly the amendment application is allowed on payment of cost of Rs. 300/- to the plaintiff. The defendant he permitted to incorporate the amendment in the written-statement and the Court may decide the suit in accordance with law. No order as to costs. Record be returned immediately.