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2005 DIGILAW 558 (PNJ)

Mahajan General Store v. Piara Singh

2005-05-03

M.M.KUMAR

body2005
JUDGMENT M.M. Kumar, J. - The tenant-petitioners have challenged order dated 4.1.2005 passed by the Rent Controller, Amritsar declining their prayer for amendment of the application filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for brevity, the Code). 2. Brief facts of the case are that the landlord-respondents had sought ejectment of the tenant-petitioners on various grounds by filing an application on 6.4.1994. The tenant-petitioners appeared and tendered the rent. They also filed the written statement. However, they started absenting from proceedings from 6.10.1995. The Rent Controller recorded ex parte evidence of the landlord-respondents and ordered ejectment of the tenant- petitioners on 26.2.1997. Against the order of ejectment, an application under Order 9 Rule 13 of the Code was filed on 15.3.1997. Thereafter, on 16.5.1999 an application under Order 6 Rule 17 of the Code was filed in which prayer was made for substituting the grounds pleaded in the application. It is appropriate to mention that in another application also, the tenant- petitioners had absented and the application under Order 9 Rule 13 of the Code was allowed by imposing a costs of Rs. 1,000/-. Coming back to the present case, the application has been dismissed by the Rent Controller by passing the impugned order, the operative part of which reads as under :- "The applicant has filed the present application on 16.5.99 for amendment of main application U/O 9 Rule 13 C.P.C. The main contention of the applicant is that after seeing the file it has come to the notice of the applicant that he has appeared in the present case and assertion in Para No. 2 in the main application has been made inadvertently. This plea is vague as it is nowhere stated that when the file was inspected and it came to the notice of the applicant regarding his appearance in the case. Moreover, this contention is contrary to the assertions made in the main application dated 15.3.97 whereby in Para No. 6 of the main application it has been specifically pleaded that applicant inspected the file on 15.3.97 and thereafter he came to know regarding the ex parte order. The fact of inspecting the file on 15.3.97 is clear from the pleadings of the applicant. The fact of inspecting the file on 15.3.97 is clear from the pleadings of the applicant. So the contention raised by counsel for applicant that on seeing the file he came to know regarding the appearance of the applicant is not sustainable and is vague. Even in the reply filed by D.H./respondent to the main application dated 10.10.97 he has specifically stated that present applicant appeared in the rent petition and tendered arrears of rent and also filed written statement. So it cannot be said that the fact regarding the appearance was not within the knowledge of the applicant........." xx xx xx xx xx xx xx "........ The above citations are not applicable to the facts of the present case. I do not find any merit in the present application and same is hereby dismissed." 3. Mr. K.S. Rekhi, learned counsel for the tenant-petitioners has made an attempt to persuade me to accept the argument that mistake of not incorporating certain grounds has been committed by the counsel and, therefore, no litigant should suffer for the mistake of the counsel. Learned counsel has also submitted that amendment is necessary for settling the controversy raised. 4. Mr. B.R. Mahajan, learned counsel for the respondent-caveators has pointed out that the tenant-petitioners have been harassing the landlord-respondents by repeatedly absenting from the proceedings and in fact wish to buy time so that no final adjudication on the application for ejectment could take place. Learned counsel had pointed out that in order dated 6.10.1998 (Annexure P-3), the finding recorded is that the tenant-petitioner was suffering from conjunctivitis and not that he was not served. The tenant-petitioners were proceeded ex parte and the service was held to be good service. Therefore, according to the learned counsel, the landlord-respondents are being harassed at the hands of the tenant-petitioners. 5. After hearing learned counsel for the parties and perusing the record of this file, I am of the view that the instant petition is wholly misconceived and is liable to be dismissed. The Rent Controller has referred to the main application dated 15.3.1997 wherein it has been specifically pleaded that the tenant-petitioners inspected the file on 15.3.1997 and thereafter, they came to know regarding the ex parte order. The Rent Controller has referred to the main application dated 15.3.1997 wherein it has been specifically pleaded that the tenant-petitioners inspected the file on 15.3.1997 and thereafter, they came to know regarding the ex parte order. The contention for incorporating the amendment that on seeing the file on a later date they came to know about their appearance has not been accepted and no explanation is forthcoming against the view taken by the Rent Controller. The plea that the tenant- petitioners had made the averments inadvertently has been held to be vague. In other words, the tenant-petitioners were fully aware of all the facts which were sought to be incorporated now by way of amendment. Therefore, no further opportunity can be granted to amend the pleadings. It appears that the tenant-petitioners are resorting to delaying tactics by tiring the landlord- respondents with the litigation. Such a conduct is not appreciable. Therefore, this petition fails and the same is dismissed with costs of Rs. 5,000/-. In view of the fact that the application under Order 9 Rule 13 of the Code is pending since 15.3.1997, the Rent Controller is directed to expedite the proceedings and dispose of the same within this year. Petition dismissed.