Harish Daulat Ram v. A. D. J. , Room No. 10, Kanpur Nagar and others
2011-09-05
S.K.GUPTA
body2011
DigiLaw.ai
Shashi Kant Gupta, J.;- 1. This writ petition has been filed against the order dated 2.5.2011 passed by the Additional District Judge, Room No. 10, Kanpur Nagar, Respondent No. 1 in SCC Revision No. 66 of 2010 whereby the order dated 27.5.2010 passed by the Judge Small Cause Court, Respondent No. 2 in Suit No. 174 of 2003 (Gyan Chandra Hajela Vs. Harish Daulat Ram) allowing the amendment application filed by the landlord Respondent No. 3 has been upheld. 2. A suit for arrears of rent and ejectment was filed by the Respondent No. 3 in the year 2003. During the pendency of the suit, an application was filed by the plaintiff under Order 6 Rule 17 CPC to amend the plaint and, inter alia, to incorporate the following amendment to the original plaint of the plaintiff; "7A". That the market value of the disputed accommodation in the year 2007 is Rs. 4,36,000/-. The plaintiff is entitled to enhance the rent @ 1% per month of the said market value i.e. Rs. 4360/- per month, and as the defendant's tenancy has already been terminated he is liable to pay the damages of use and occupation of the tenanted accommodation with the same rate i.e. Rs. 4360/- per month. "7B". That during the pendency of the present suit, as per view of the Hon'ble High Court the rent as well as the damages of the use and occupation of the accommodation will be enhanced with the rate of 1% per month of the market value of the tenanted accommodation. Therefore, the plaint is required to be amended accordingly." 3. The petitioner filed his objection against the proposed amendment but the trial court by order dated 27.5.2010 allowed the amendment application. Being aggrieved and dissatisfied with the order dated 27.5.2010, the petitioner preferred a SCC Revision No. 66 of 2010 which was dismissed by the revisional court by order dated 2.5.2011. Hence, the present writ petition. 4. Learned counsel for the petitioner has submitted that the courts below has not considered the fact that the amendment application in question is a third amendment application which clearly indicates the motive of the plaintiff-Respondent No. 3. It has been further submitted that the said amendment application has been filed only to harass the petitioner and he was not interested in getting the suit finally disposed of.
It has been further submitted that the said amendment application has been filed only to harass the petitioner and he was not interested in getting the suit finally disposed of. It has further been submitted that the lower court did not consider the fact that the Respondent No. 3 has sought the amendment of the arrears on the ground of damages claimed in the year 2003 in the present suit and the circle rate which has been determined in the year 2007 has a prospective effect and not retrospective effect. It has further been submitted that the amendment sought by the plaintiff is not only beyond the purview of UP Act No. 13 of 1972 but also beyond the pecuniary limits of the trial court. 5. Heard the learned counsel for the petitioner and perused the record. 6. In Rakesh Kumar Agarwal and others Vs. K.K. Modi reported in (2006) 4 SCC 385 ; it was laid down that the rule of amendment is essentially a rule of justice, equity and good conscious; and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 7. In this connection, it is also apt to extract Rule 17 of Order VI CPC, which is as under: "17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. " 8. The first limb of the Rule 17 of Order VI CPC viz.
" 8. The first limb of the Rule 17 of Order VI CPC viz. "the Court may at any stage of the proceedings allow either party to alter or amend their pleadings in such manner" is discretionary in view of the word "may" used therein; The second limb of the Rule 17 of Order VI CPC i.e. "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties" is imperative in view of the word "shall" used. However, the proviso to Rule 17 of Order VI CPC expressly bars such amendments after the commencement of the trial of suit. But still, the bar imposed under the proviso to the Rule 17 of Order VI CPC is not absolute, because, even after the commencement of the trial, the Court may allow either of the parties to amend or alter their pleadings, if the court comes to the conclusion that despite due diligence, the parties could not raise the matter before the commencement of the trial. It is in this sense, the power to amend the pleadings, is wide, and such power of the court should not be mere hypertechnical. It should be exercised liberally. With this background, now let us consider the submissions made by either side. 9. From a bare perusal of the record, it is evident that the orders passed by the lower court allowing the amendment application would neither change the nature of the suit nor, more importantly, prejudice the right of defense of the petitioner in any manner. The merit of the amendment cannot be gone into. Only question to be considered is whether such amendment would be necessary for the decision of the real controversy between the parties in the suit. The court below has yet to decide the issues on merits on the basis of the material available on record. It is open to the defendant petitioner to raise the objection in regard to the amended plaint by making a corresponding amendment in the written statement. Apart from filing the additional written statement, the petitioner will also get an opportunity to lead oral and documentary evidence in his favour. 10. This Court in the case of Kamal Regmi Sharma and others Vs. Neapal Bank Ltd and others, 1987 ALL. L. J. 349 has held as follows; "10.
Apart from filing the additional written statement, the petitioner will also get an opportunity to lead oral and documentary evidence in his favour. 10. This Court in the case of Kamal Regmi Sharma and others Vs. Neapal Bank Ltd and others, 1987 ALL. L. J. 349 has held as follows; "10. While exercising the revisional jurisdiction under S. 115, C.P.C. the revisional Court ought not to interfere with a discretion which has been exercised by the court below in allowing the amendment of the pleadings. Such an interference may be permissible with cogent reasons or compelling circumstances have been shown. In the instant case learned counsel for the applicants have failed to show any such reason or circumstance much less cogent or compelling one warranting interference. In the case of Haridas Alidas v. Godrej Rustom Kermani ( AIR 1983 SC 319 )(supra) it has been held that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is likely to be caused to the other side." 11. The court below has given cogent, convincing and satisfactory reasons while passing the orders in favour of the plaintiff. 12. The reasons mentioned in the impugned orders are good enough to satisfy the order and no fault can be found with the approach adopted by the court below. Thus, I do not find any illegality or infirmity in the impugned orders passed by the court below. 13. In view of the above, I do not see any merit in the writ petition. 14. The writ petition is, accordingly, dismissed.