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2008 DIGILAW 475 (JHR)

Bharat Amin v. Sharad Vasati

2008-04-17

M.Y.EQBAL

body2008
JUDGMENT: M. Y. Eqbal, J.- In this writ application under Article 227 of the Constitution of India the question that falls for consideration is as to whether facts admitted in the pleading can be withdrawn by amendment. 2. The facts of the case is that plaintiff-petitioner filed eviction suit no. 35/ 05 for decree of eviction in respect of the suit premises on the ground that the defendant who is a tenant has not paid rent for the month of December, 2004 and subsequently the rent for the month of January and February, 2005 has been paid and thereafter, from March, 2005 rent has not been paid. The defendant/respondent fi1ed written statement contesting the suit of the plaintiff. However, after one year defendant filed petition under Order VI Rule 17 CPC by which he allegedly wanted to withdraw some admission and sought to take a new defence. The court below after hearing the parties allowed the amendment petition holding that in the suit issues were not framed and the proposed amendment is necessary for the purpose of determining real question in controversy and the same will not change the defense of the defendant. 3. I have heard learned counsel for the petitioner and the learned counsel for the respondent. 4. A copy of the plaint has been annexed as Annexure-1 to the writ application. In paragraph 7 it has been pleaded by the plaintiff that defendant paid rent for the month of November, 2004 then the plaintiff demanded rent constantly for payment of rent for the month of December, 2004 and January and February 2005. Defendant paid rent for the month of January but he did not paid rent for the month of December, 2004. In para 8 of the plaint the plaintiff further pleaded that defendant failed to make payment from the month of March 2005, He has lastly paid rent for the month of February, 2005. Paragraph 7 of the plaint has been controverted in paragraph 9 of the written statement. Defendant denied the averments made in paragraph 7 of the plaint. In the said paragraph defendant's case is that plaintiff after receiving rent of December, 2004 did not grant any receipt and defendant also did not insist for the same. Paragraph 7 of the plaint has been controverted in paragraph 9 of the written statement. Defendant denied the averments made in paragraph 7 of the plaint. In the said paragraph defendant's case is that plaintiff after receiving rent of December, 2004 did not grant any receipt and defendant also did not insist for the same. It is clear that plaintiff is trying to take advantage of not granting receipt in favour of defendant although he has received rent from the month of December, 2004. In paragraph 10 it was pleaded that since plaintiff refused to accept rent from defendant; defendant has no alternative but to send the rent and electric charges by postal money order. For better appreciation, paragraphs 9 and 10 of the written statement is reproduced hereinbelow:- "9. That the statements made in para 7 are absolutely false and baseless. It is false to allege that the defendant paid the rent for the month of January and February 2005 and did not pay rent for the month of December, 2004. It is absolutely incredible that the rent for the month of January and February, 2005 is accepted by the plaintiff without accepting the rent for the previous month. It is stated that the plaintiff after having received the rent for December, 2004 did not grant any receipt and the defendant also did not insist for the same. It is manifest that the plaintiff is trying to take advantage of not granting receipt in favour of the defendant although he has received rent for the month of December, 2004. 10. That the statements made in paras 8 and 9 are denied. As a matter of fact since the plaintiff refused to accept the rent from the defendant or personal tender, the defendant had no other alternative then to send rent and electric charges by separate postal money order but the plaintiff has been systematically refused to accept the rent. The plaintiff, however, has been accepted the electricity charges sent to him by postal Money Order." 5. As stated above, after about a year defendant filed application under Order VI Rule 17 CPC and sought to add some more facts in paragraph 9 of the written statement. Paragraphs 2 and 3 of the amendment petition is reproduced hereinbelow:- “2. The plaintiff, however, has been accepted the electricity charges sent to him by postal Money Order." 5. As stated above, after about a year defendant filed application under Order VI Rule 17 CPC and sought to add some more facts in paragraph 9 of the written statement. Paragraphs 2 and 3 of the amendment petition is reproduced hereinbelow:- “2. That due to inadvertence and oversight the factum of payment of rent from March 2005 to June 2005 by defendant to the plaintiff has been omitted to be mentioned due to typographical,error." "3.That it is therefore necessary to amend the written statement as indicated below : After existing para 9 of the written statement a fresh sub-para be inserted with then following sentences : "The defendant paid rent to the plaintiff from March 2005 to June 2005 but the plaintiff did not grant any receipt to the defendant. The defendant however did not insist for issuance of rent receipts in respect of the aforesaid period keeping in view the cordial relationship existed between the parties. As the plaintiff refused to accept rent for the month of July, 2005, the defendant started remitting the rent from July 2005 onwards by postal money order," 6. From perusal of the written statement, it appears that the defendant has not made any averment with regard to allegation made by the plaintiff that rent for the period from March, 2005 to June, 2005 was either not paid or, if paid, the rent-receipts were not granted by the plaintiff. In the amendment petition, it is stated by the defendant that due to inadvertence and oversight, the defence with regard to alleged non-payment of rent from March, 2005 to June, 2005 has not been stated due to typographical error. It is not a case where the defendant admitted the non-payment of rent from March, 2005 to June, 2005. In that view of the matter, the question of withdrawal of admission by way of amendment does not arise. Besides that, as noticed above, amendment petition was filed before settlement of issues. Moreover, so far issue of default is concerned, it is for the defendant-tenant to prove payment of rent. Merely the fact introduced by way of amendment will not serve the purpose. It is for the defendant to prove and establish that rent for the aforesaid period was paid but rent receipt was not granted. 7. Moreover, so far issue of default is concerned, it is for the defendant-tenant to prove payment of rent. Merely the fact introduced by way of amendment will not serve the purpose. It is for the defendant to prove and establish that rent for the aforesaid period was paid but rent receipt was not granted. 7. Taking into consideration the facts of the case, I am of the view that the Court below rightly allowed the amendment petition. The impugned order, therefore, needs no interference. This application is dismissed.