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2011 DIGILAW 2821 (RAJ)

Anurodh v. Kedar Nath Gupta

2011-12-23

ALOK SHARMA

body2011
JUDGMENT : Alok Sharma, J. By this petition under Article 226 of the Constitution of India a challenge has been laid to the order dated 27.11.2010 passed by the Additional Civil Judge (Jr. Division) No.2, Dholpur, dismissing the petitioner tenant's application under Order 6 Rule 17 Civil Procedure Code for amendment of his written statement. 2. Facts of the case are that a suit for eviction was filed by the plaintiff respondent (hereinafter, the respondent) in the year 1991 against the petitioner tenant (hereinafter "the tenant") and his mother and others. The said suit is being duly contested by the mother of the tenant and others and written statements have been filed therein. At the time of filing of the suit for eviction, as the petitioner tenant was a minor, one Shri T.K. Modi, an Advocate of repute came to be appointed as his guardian ad litem and a written statement came to be filed on behalf of the tenant as defendant in suit on or about 30th September, 1983. 3. In the aforesaid suit, issues have already been settled as early as 8th July, 2003 and the evidence of one of the landlords Shri Purushottam Das taken by way of an affidavit in evidence and he cross examined on 17th July, 2010. It appears that there-upon the petitioner tenant proceeded on a strategy of obfuscation and obstruction and commenced moving various applications before the trial Court even though the evidence of the plaintiff was under way. In the first instance an application came to be moved on or about 28th September, 2010 purported to be one under Section 151 Civil Procedure Code seeking filing of a fresh written statement. The said application was dismissed by the trial Court on 20th October, 2010. Immediately thereafter, on 21st October, 2010 another application was moved by the petitioner tenant for stay in the proceedings of the suit. The said application was also dismissed. Thereafter on 29.10.2010 an application was further moved by the petitioner tenant seeking to amend the written statement filed as early as 8th July, 2003. 4. Order 6 Rule 17 Civil Procedure Code which deals with the provision for amendment to pleadings was prone to misuse entailing delays in trial and resulting in public concerns and more of the delays in Courts impinging upon very sustainability of public belief in the efficacy of Courts in rendering justice. 4. Order 6 Rule 17 Civil Procedure Code which deals with the provision for amendment to pleadings was prone to misuse entailing delays in trial and resulting in public concerns and more of the delays in Courts impinging upon very sustainability of public belief in the efficacy of Courts in rendering justice. Consequently, the Parliament taking cognizance of the misuse to Order 6 Rule 17 Civil Procedure Code by way of an amendment in 2002 inserted a Proviso to Order 6 Rule 17 Civil Procedure Code whereunder, no application for amendment was to be allowed after the trial had commenced, unless the Court come to a conclusion that in spite of due diligence the party could not have raised the matter before commencement of trial. 5. In the context of the mandate of law as now obtaining, a bare look at the facts of the case would indicate that the petitioner in the cause title of the petition gives out himself to be of 28 years of age in the year 2010 when the writ petition was filed. It is just thus plain that the petitioner who was minor at the time the suit was laid, attained 18 years of age some time in the year 2000. It took the petitioner tenant 10 years thereafter to move an application for amendment of written statement under Order 6 Rule 17 Civil Procedure Code on 29th October, 2010. This delay on the face of it was fatal to the petitioner's application under Order 6 Rule 17 Civil Procedure Code for amendment to the written statement filed on his behalf by his guardian ad-litem Mr. T.K. Modi on 30.09.1993. If the petitioner had any iota of intent to seek amendment to his written statement he ought to have done so immediately on attaining majority some time in the year 2000. 6. The trial Court has however also noticed the merits of the amendment sought for buttressing its conclusions that the amendment sought was not so much for the vindication of justice but only to abuse the process of the Court and misuse a salutary procedural provision. 6. The trial Court has however also noticed the merits of the amendment sought for buttressing its conclusions that the amendment sought was not so much for the vindication of justice but only to abuse the process of the Court and misuse a salutary procedural provision. The trial Court has noticed that the paragraphs sought to be added to the written statement by way of amendment i.e. paragraphs 5 to 52 were not of substance, inasmuch as the aforesaid paragraphs were a repetition of paragraphs 5 to 20, 31 to 36, 38, and 40 to 49 of the written statement earlier filed. The trial Court further noticed that same facts sought to be brought by way of amendment were even contradictory to the written statement as well. In the earlier written statement it has been stated that the shop was taken on rent 50 years before and by way of amendment it was sought to be stated that rented in about 100 years before. It was further noted that substantial part of the amended written statement sought to he brought on record was a re-assertion of the defences taken by the petitioner-tenant's mother and others in para Nos.7 to 25 of the written statement. The trial Court also noticed that the earlier application moved by the petitioner tenant u/s.151 Civil Procedure Code for taking the amended written statement on record had been dismissed and the said dismissal not put to challenge. The trial Court further noted that the application for amendment did not give any good ground for moving the said application belatedly and there was no good reason as to why it was essential to amend the written statement. In this view of the matter, with reference to the Proviso to Order 6 Rule 17 Civil Procedure Code as obtaining presently on the statute the Trial Court found that the application for amendment was not bona fide and moved only for the purpose of only delaying the trial and harassing the plaintiff landlord. 7. Counsel for the petitioner could not advance any coherent argument to dislocate the very solid and logical reasoning of the trial Court in dismissing the application for amendment under Order 6 Rule 17 Civil Procedure Code. 8. I have heard counsel for the petitioner and the respondent and perused the impugned order. 9. 7. Counsel for the petitioner could not advance any coherent argument to dislocate the very solid and logical reasoning of the trial Court in dismissing the application for amendment under Order 6 Rule 17 Civil Procedure Code. 8. I have heard counsel for the petitioner and the respondent and perused the impugned order. 9. From the facts on record, it is evident that the application under Order 6 Rule 17 Civil Procedure Code moved by the petitioner tenant on 29.10.2010 before the trial Court was a grossly belated application moved about 10 years subsequent to the petitioner tenant who was a minor at the time of filing the suit for eviction, having attained majority. Diligence for invoking the provisions of Order 6 Rule 17 Civil Procedure Code is a sine qua non. From the facts on record before the trial Court as also before this Court, the counsel for the petitioner tenant was unable to satisfy this Court as to the diligence with which the application for amendment was moved. On the contrary, various applications moved before the trial Court as detailed hereinabove are indicative of a sustained attempt by the petitioner tenant to stultify the process of the Court to prevent the proceedings in an eviction suit filed in 1991, more so at a stage subsequent to the commencement of the plaintiff's evidence. This state of affairs cannot be countenanced if the flow of justice is to be maintained and quick adjudications achieved. No litigant should rest complacent in his belief that by varied methods of obstruction, the rights of a party can be rendered illusory and confined to the processes of the Court without any real succour and the relief to which the litigant may be entitled under law. 10. The facts of the case indicate that the trial Court had found the application under Order 6 Rule 17 Civil Procedure Code as being filed only for the purposes of harassing the plaintiff without anything more and visited the petitioner tenant with the cost of Rs. 200/-. Yet the petitioner tenant rather than a taking message from the order of the trial Court and the stark facts of his case, approached this Court invoking its supervisory jurisdiction under Article 227 of the Constitution of India. 200/-. Yet the petitioner tenant rather than a taking message from the order of the trial Court and the stark facts of his case, approached this Court invoking its supervisory jurisdiction under Article 227 of the Constitution of India. I am of the considered view that this petition was moved not so much for the vindication of justice or safeguard of the petitioner-tenant's right but only as a chance as would be entailed in throwing a hat with the hope that it will find a peg. 11. I find from the facts on record that the petition moved in the instant case is the grossest abuse of the process of the Court and to keep stream of justice pure and unobstructed the petition is liable to be dismissed with an exemplary cost of Rs. 10,000/- to be paid to the respondent landlord. 12. Consequently, the petition is dismissed with cost of Rs. 10,000/- to be paid by the petitioner tenant to the respondent landlord. 13. The stay application also stands dismissed.