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2003 DIGILAW 811 (PNJ)

Vishwa Mitter v. Jagdish Parshad Gaind

2003-05-26

ADARSH KUMAR GOEL

body2003
Judgment Adarsh Kumar Goel, J. 1. The respondent-landlord filed a suit for injunction restraining the tenant from interfering with the use of stairs of the disputed building. It was stated that the petitioner-tenant took the shop on rent at a monthly rent of Rs. 150/- vide rent note dated 24.9.1958 wherein it was provided that landlord will have right to go to upper portion of the building through the stairs and tenanted premises were only the shop. It was alleged that the defendant-tenant committed acts impairing the value and utility of the building and made additions and alterations in the premises for which separate eviction petition was proposed to be filed. The suit was contested. After trial, suit was dismissed. During pendency of the appeal, the plaintiff moved an application for adding a plea that the defendant-tenant had included the thara (platform) in the shop and fixed a shutter whereby terrace to the staircase was blocked. The appellate court allowed the said amendment rejecting the objection that suit was only against obstructing the use of stairs and the amendment would change the subject matter of the suit as thara was a part of the tenancy. 2. Learned counsel for the petitioner submitted that amendment introducing entirely new case could not have been allowed and in view of provisions of proviso to Order 6 Rule 17 CPC. amendment could not be allowed unless in spite of due diligence, the matter could not be raised before commencement of the trial. Reliance is placed on Modi Spinning & Weaving Mills Co. Ltd. and Anr. v. Ladha Ram & Co., A.I.R. 1977 S.C. 680, Heeralal v. Kalyan Mal and Ors. (1998)1 S.C.C. 278-Harbans Singh v. Mehnga Singh and Ors. A.I.R. 1973 P&H 409, Smt. Ikbal Begum v. Akhtar Ali, A.I.R. 1973 P&H 478 and Jagdish Singh and Ors. v. Chander and Ors., 1978 P.L.J. 389. 3. Learned counsel for the respondent submitted that revision petition will not lie against order permitting amendment. Reliance is placed on Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors., J.T. 2003(4) S.C. 255 and Prem Bakshi and Ors. v. Dharam Dev and Ors., (2002-1)130 P.L.R. 558 (S.C.). It was also submitted that amendment was a discretion and could not be refused on technical grounds and the order of amendment was not open to challenge in revision. Housing Society, Nagpur v. Swaraj Developers and Ors., J.T. 2003(4) S.C. 255 and Prem Bakshi and Ors. v. Dharam Dev and Ors., (2002-1)130 P.L.R. 558 (S.C.). It was also submitted that amendment was a discretion and could not be refused on technical grounds and the order of amendment was not open to challenge in revision. Reliance is placed on Sher Singh v. Joint Director of Consolidation A.I.R. 1978 S.C. 1341 and Jai Jai Ram Monohar Lal v. National Building Material Supply, Gurgaon, A.I.R. 1969 S.C. 1267. 4. I have perused the impugned order allowing amendment. No doubt, this court does not normally interfere with the order allowing amendment under revisional jurisdiction as submitted by learned counsel for the respondent but an order which is patently erroneous can still be interfered with under Article 227 of the Constitution. Amendment sought in the present case is not at the initial stage but at the appellate stage and seeks to include within the subject matter of the suit thara of the shop while the suit only related to obstruction of stairs. By no stretch of imagination, it could be said that such a plea could not be raised earlier. Such a factual plea cannot be raised after the trial is over in a case of the present nature. The decisions relied on by the counsel for the respondent are distinguishable having regard to the peculiar facts of the present case. In Prem Bakshi (supra) suit was at the trial stage. Even though at appellate stage also, amendment can be allowed but that is governed by different parameters. In Shiv Shakti (supra) issue involved was of maintainability of revision under Section 115 CPC. Jai Jai Ram and Sher Singh cases (supra) wherein it was held that amendment could not be refused on technical grounds and that revisional jurisdiction could not be exercised unless there was illegality or irregular exercise of power, are also not applicable to the facts of the present case. 5. For the above reasons, this petition is allowed. The impugned order is set aside. It is, however, made clear that this order will not prejudice the case of the respondent- plaintiff within existing pleadings and evidence. Parties will appear before the trial court for further proceedings on 28.7.2003.