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2008 DIGILAW 473 (JHR)

Alimun Nisha v. Md. Sahid Ahmad

2008-04-17

M.Y.EQBAL

body2008
JUDGMENT M.Y. Eqbal, J. 1. In this writ petition under Article 227 of the Constitution the petitioner has challenged the order dated 9.3.2006 passed by Munsif, 2nd at Dhanbad in Title (Eviction) Suit No. 96 of 2001 whereby he has allowed the amendment petition filed by the defendant-respondent under Order VI, Rule 17. CPC. 2. The plaintiff-petitioner filed the aforesaid suit for eviction of the defendant on the ground of default and also on the ground of personal necessity. 3. The defendant contested the suit by filing written statement. However, during the pendency of the suit the defendant filed a petition under Order VI, Rule 17, CPC for amendment of the written statement by introducing some more paragraphs. The Court below, after hearing the parties, allowed the said amendment petition. 4. Mr. Debi Prasad, learned Sr. Counsel appearing on behalf of the petitioner assailed the impugned order as being illegal and without jurisdiction. Learned counsel submitted that by the proposed amendment the defendant wanted to change the very complexion of the suit and introduce a new written statement and that by the said amendment the defendant wants to withdraw the admission made in the written statement. Learned counsel submitted that such admission made in the pleading cannot be withdrawn by amending the written statement. In this connection learned Counsel relied on a decision of the Supreme Court reported in 1998(1) SCC, 278. 5. Mr. Shamim Akhtar, learned SC H, appearing on behalf of the respondent- defendant, on the other hand, submitted that by the proposed amendment the defendant, as a matter of fact, has explained and clarified the facts which have already been averred in the written statement. There is no withdrawal of any admission. 6. In course of argument Mr. Debi Prasad, learned Counsel for the petitioner mainly referred to paras 5 and 6 of the written statement. For better appreciation those paras are quoted hereinbelow: 5. That the defendant and his two younger brothers, namely Qurban Ali and Madar Baksh had been living in the suit premises with their family members as tenants since last 28 years continuously and were regularly paying agreed/settled rent Rs. 150/- P.M. to the plaintiff with the knowledge and consent of her son Abdul Hamid without any rent receipt. 6. That the defendant and his two younger brothers, namely Qurban Ali and Madar Baksh had been living in the suit premises with their family members as tenants since last 28 years continuously and were regularly paying agreed/settled rent Rs. 150/- P.M. to the plaintiff with the knowledge and consent of her son Abdul Hamid without any rent receipt. 6. That, there has been no written agreement for tenancy in between the plaintiff and the defendants but orally everything was settled at the time of induction of the defendant as tenant and as per the settled oral agreement the defendant has been regularly paying rent to the plaintiff and for that no rent receipt was ever granted kacha, or pucca, to the defendant. If the version of the plaintiff is taken to be true regarding issuance of printed rent receipts than the plaintiff is to produce such receipts countersigned by the defendant to prove her version and receipts without counter-signature must be fabricated ones and also against the admitted terms of the agreement after the execution thereof. 7. Mr. Debi Prasad, learned Counsel for the petitioner submitted that by the proposed amendment the defendant has withdrawn such admission. From perusal of the amendment petition it transpires that no amendment has been sought for in those paragraphs which have been quoted hereinabove. By the proposed amendment the defendant wanted to introduce the facts with regard to execution of agreement to sell in the year 1999 and also the after effect of the execution of agreement. 8. As noticed above, in paras 5 and 6 the defendant has categorically stated that he has been regularly paying rent to the plaintiff and for that no rent receipt was ever granted. In para 10 contrary statement was made to the effect that it was agreed between the parties that the purchaser shall not pay monthly rent after 20.11.1999. 9. In view of the statement already made in the written statement I am of the view that the proposed amendment will not amount of withdrawal of admission. The admission with regard to payment of rent and non-grant of rent receipt are already in the written statement. The Court below, therefore, rightly held that for effective consideration and determination of the issue in controversy between the parties the proposed amendment is to be allowed. The admission with regard to payment of rent and non-grant of rent receipt are already in the written statement. The Court below, therefore, rightly held that for effective consideration and determination of the issue in controversy between the parties the proposed amendment is to be allowed. Moreover, the proposed amendment is not going to change the nature and character of the suit. 10. In the aforesaid facts and circumstances of the case, I do not find any justification in interfering with the impugned order. This writ application is, accordingly, dismissed. 11. Needless to say that the Court below, while hearing the suit, shall consider the effect of the statements made in each and every paras of the pleadings of the parties.