Research › Search › Judgment

Allahabad High Court · body

2005 DIGILAW 455 (ALL)

MOHD NADEEM v. HABIB AHMED

2005-03-09

VIKRAM NATH

body2005
VIKRAM NATH, J. This writ petition has been filed by the defendant challenging the order dated 6-2-2004 passed by the Judge, Small Causes Court and also order dated 30-7-2004 passed by the Additional District Judge, Court No. 6, Bareilly, whereby the amendment application filed by the defendant-petitioner was dismissed and the revision against the same was also dismissed. 2. The facts giving rise to this petition are that Habib Ahmad respondent filed a suit for recovery of arrears of rent and ejectment of the petitioner, which was registered as S. C. C. Suit No. 57 of 2000 Habib Ahmad v. Mohd. Nadeem. The defendant-petitioner filed written statement and subsequently moved and amendment application (paper No. 48-C) seeking amendment of the written statement. Objections were filed by the plaintiff to the said application, mainly on two grounds firstly, that in the garb of the amendment sought by the defendant he wanted to withdraw an admission made in the written statement and secondly, the amendment was filed at a belated stage after close of plaintiffs evidence. The trial Court vide order dated 6-2- 2004 after hearing the parties came to the conclusion that the amendment sought by the petitioner was not at all necessary and accordingly rejected the same. 3. Aggrieved by the said order the defendant-petitioner filed a revision under Section 25 of the Provincial Small Causes Courts Act, which was registered as S. C. C. Revision No. 14 of 2004. The revisional Court also by means of judgment dated 30-7-2004 dismissed the revision. 4. Aggrieved by the same, the present writ petition has been filed. 5. I have heard Sri Dilip Khare, learned Counsel for the petitioner and Sri Javed Habib, learned Counsel for the respondent. 6. Learned Counsel for the respondent has made a statement that he does not propose to file counter- affidavit and prays that the petition itself may be finally decided. The Counsel for petitioner has no objection. With the consent of the parties the petition itself is being finally heard at the stage of admission. 7. The petitioner by means of the amendment application (paper No. 48-C) sought to add paragraphs 10-A and 10-B in the written statement. The Counsel for petitioner has no objection. With the consent of the parties the petition itself is being finally heard at the stage of admission. 7. The petitioner by means of the amendment application (paper No. 48-C) sought to add paragraphs 10-A and 10-B in the written statement. By means of paragraph 10-A the petitioner sought to add that the shop in dispute was an old construction made prior to 1970 and not of 1986 and, therefore, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short referred to as the Act) was applicable to the building. By means of paragraph 10-B it was alleged that at the time of taking of the premises in dispute on tenancy, the petitioner in good faith and belief of the common friends did not insist for keeping the rent note and also did not care to read the rent note and signed the same without reading however, on coming to know that in the rent note it was mentioned that the shop in dispute was constructed in the year 1986 which was an incorrect fact and as such it had become necessary to mention that the said rent note may not be taken to be admitted. 8. The objections were filed by the plaintiff-respondent alleging that the evidence of the plaintiff was closed and amendment paper No. 48-C was only preferred to delay the proceeding and secondly, the defendant had admitted that the shop in dispute was constructed in 1986 and, therefore, could not withdraw the said admission. On these objections, the trial Court rejected the amendment application on the ground that the nature of the amendment sought was factual and was not necessary for just and proper decision of the suit. The revision against the same also failed. 9. It has been contended by learned Counsel for the petitioner that the petitioner had given reasons for bringing on record the fact that the construction of the shop in dispute was of the year 1970 and, therefore, the provisions of the Act would be applicable. It was further contended that the petitioner will have to prove the said fact by evidence. It was further contended that the petitioner will have to prove the said fact by evidence. The question regarding applicability of the Act will have to be considered on the evidence led by the parties and goes to the root of the matter, such as grant of benefits available under the Act to the tenant or the landlord. In any case this would help in proper adjudication of rights between the parties. Therefore, I do not find any merit in the submission of the respondent such as withdrawal of admission. The controversy with regard to the date of the construction of the shop in dispute is be decided on the basis of the evidence for which the parties will have sufficient opportunity to lead evidence in support of their contentions. Further the non-admission of the rent note will also depend on the evidence led by the parties. The amendment has been moved at the stage of the trial and evidence has not concluded. Even the revisional Court observed that no prejudice would be caused in case the amendment is allowed. In my opinion also no grove prejudice would be caused in allowing the amendment sought by the petitioner. 10. In the circumstances the writ petition is liable to be allowed. The impugned orders dated 6-2-2004 and 30-7-2004 are set aside. The trial Court may pass appropriate orders on the amendment application an after giving opportunity to the plaintiff to file replication may proceed with the suit in accordance with law. Further as the suit is pending since the year 2000 and the suit being summary in nature needs to be decided expeditiously, the trial Court may decide the suit expeditiously preferably within a period of 6 months from the date of production of certified copy of this order. The petition is accordingly allowed as above, with no order as to costs. Petition allowed. .