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2011 DIGILAW 335 (JK)

Mohammad Tariq Mir v. Ghulam Qadir Bhat

2011-07-06

Hasnain Massodi

body2011
1. Shri Ghulam Qadir Bhat-respon-dent herein on 29.11.2006 filed a suit for mandatory injunction decree, commanding the petitioner-defendant in the suit to vacate and handover the possession of shop No. 3 situated at General Bus Stand Anantnag, to the respondent. The respondent's case before the trail Court was that possession of the suit shop was handed over to the petitioner under Licence Deed executed on 27.12.2005 on payment of Licence fee of Rs. 10, 000/-. The petitioner, it was pleaded, was to hold possession of suit shop as a Licensee from 01.10.2005 to 30.09.2006 and under a contractual obligation to handover its possession to the respondent at the end of licence period. The respondent's case was that though the licence period was over and the petitioner asked to handover possession of the suit shop to the respondent, the petitioner avoided to vacate the suit shop and handover its possession to the respondent, constraining him to file the suit. 2. The petitioner in his written statement filed on 09.07.2007, admitted the respondent to be rightful owner of the suit shop and also admitted that the petitioner entered into possession of the said shop under Licence Deed dated 27th December 2005. The petitioner, admitted that the Licence Deed expired on 03.09.2006. The petitioner however, claimed that after the Licence Deed came to an end the petitioner approached the respondent with the request to allow the petitioner to continue in possession of the suit shop and execute a fresh Deed. It is pleaded, that the respondent in principle agreed to extension in occupation of the suit shop, but asked for enhancement of the rent. The case set up by the petitioner before the trial Court was that there was no dispute between the parties as regard petitioner's possession over the suit shop, though an agreement on quantum of rent was yet to be arrived at. The petitioner admitted to have received a notice from the respondent through his lawyer Sh. M. A. Parray, requiring him to vacate the premises, and that the legal notice was dispatched when the negotiations between the parties were going on. However, it was insisted that the petitioner continued to have possession of the suit shop even after the notice period was over. M. A. Parray, requiring him to vacate the premises, and that the legal notice was dispatched when the negotiations between the parties were going on. However, it was insisted that the petitioner continued to have possession of the suit shop even after the notice period was over. The petitioner pleaded that respondent by his conduct had allowed the petitioner to continue as "tenant" of the suit shop on higher rent and that in terms of Section 116 of Transfer of Property Act, lease in favour of the petitioner was taken to have been automatically renewed. The petitioner while claiming to be in possession of the suit shop signified his intention to pay rent to the respondent even at enhanced rate. 3. The petitioner a little less than a year after written statement was filed on 08.03.2008, filed an application for grant of leave to amend the written statement. It was pleaded that the Licence Deed, mention whereof was made in the plaint, was fake and forged. It was averred that the Licence Deed was intended by the parties to be a Rent Deed and that the scribe of the Licence Deed did not read over and explain its contents to the petitioner at the time of its execution, and petitioner was given to understand by the scribe that what was executed was rent deed. It was further pleaded, that the aforementioned facts were narrated to Shri Khursheed Ahmad Wani Advocate, at the time of filing of written statement, but Shri Wani did not set out facts in written statement. The petitioner also denied to have received legal notice from the respondent requiring him to vacate the suit shop. The petitioner in para 12 of his application, expressed his contention to withdraw the admissions made in written statement. 4. The amendment application was resisted inter alia on the grounds that the application was made to delay the proceedings. The respondent insisted, that the petitioner was not competent to withdraw the admission made in the plaint as regards execution of Licence Deed and the petitioner having regard to the allegations made in the application was required to throw challenge to the Licence Deed and not to seek amendment of the writ statement. 5. The trial Court vide order dated 05.08.2008 allowed the application and granted leave to the petitioner to amend the written statement subject to payment of Rs. 2000/- as costs. 5. The trial Court vide order dated 05.08.2008 allowed the application and granted leave to the petitioner to amend the written statement subject to payment of Rs. 2000/- as costs. 6. The trial Court order dated 05.08.2008 was questioned in Civil Revision No. 132/2008 before this Court. The Revision Petition was allowed and the order set aside on the ground that there was no endorsement in the body of the application for grant of leave to amend the written statement, filed before the trial Court to the effect that contents of the application were read over and explained to the petitioner by any person, before the petitioner had put his signature thereon. However, the petitioner was given liberty "to make a bonafide application seeking amendment of the written statement" provided the same was filed on or before 1st October, 2009. 7. The petitioner accordingly filed a fresh application for grant of leave to amend the written statement on 23.09.2009. The petitioner reiterated the averment made in the earlier application, constraining him to seek amendment to the written statement. It was insisted, that the scribe of the Deed in question had made the petitioner to put his signatures on the Deed under the mistaken belief that the Deed was a Rent Deed and not a Licence Deed as it later turned out to be. The petitioner assailed the Deed as fake and forged. It was next pleaded, that the petitioner was deceived by his lawyer Shri Khursheed' Ahmad Wani who did not set out facts narrated to him as regards nature of the Deed and the circumstances in which it was executed, in written statement. The petitioner further pleaded that he had not received any legal notice from the respondent, through his lawyer erroneously recorded an admission in the written statement on behalf of the pe-titio'ner that the petitioner had duly received a notice from Sh. M. A. Parray Advocate, on behalf of the respondent. 8. The trial Court vide order dated 02.03.2010 declined leave to amend the written statement opining that the amendment prayed for is unjust and if allowed would result in prejudice to the respondent. 9. M. A. Parray Advocate, on behalf of the respondent. 8. The trial Court vide order dated 02.03.2010 declined leave to amend the written statement opining that the amendment prayed for is unjust and if allowed would result in prejudice to the respondent. 9. The trial Court order dated 02.03.2010 is questioned in the present Civil Revision on the grounds that trial Court has not appreciated the facts and law in right perspective and erroneously held the amendment sought to be unjust and to result in prejudice to the respondent. The trial Court, according to the petitioner while passing the impugned order depicted lack of understanding of underlying purpose and object of Order 6 Rule 17 of CPC, and also its scope and ambit. Insisting that the impugned order was passed in a mechanical manner without proper application of mind, the petitioner pleads that the trial Court has illegally exercised jurisdiction vested in it, making it necessary to intervene under Section 115 CPC. 10. I have gone through the pleadings, trial Court record and have heard Counsel for the parties. 11. There can be no disagreement with the legal preposition that the rules of procedure are intended to secure the proper administration of justice and not to be used to punish a litigant, order 6 Rule 17 CPC empowers the Court to allow either of the party to alter or amend his pleadings at any stage of the proceedings and mandatorily allow such amendments as are necessary for the purpose of determining the real question in controversy between the parties. Like other rules or procedure Order 6 Rule 17 CPC is to serve and be subordinate to the fundamental purpose of such rules. However, it does not follow that the Court is to permit amendment to the pleadings at mere asking of either party to the suit, without making out a case for grant of leave to amend the pleadings. While exercising the power to allow amendment of the pleadings, liberally the Court is to be on guard that the amendment to the pleadings, not necessary for the purpose of determine the real questions in the controversy between the parties, not allowed to be incorporated. While exercising the power to allow amendment of the pleadings, liberally the Court is to be on guard that the amendment to the pleadings, not necessary for the purpose of determine the real questions in the controversy between the parties, not allowed to be incorporated. Where the proposed amendment is to lead to total displacement of the case setup or where the effect of the amendment to be would be to negate a right by lapse of time or would introduce a totally different, new and inconsistent case and above all where the amendment is not made in good faith or is malafide, the Court is to desist from granting leave to amend the pleadings. It is well settled law that the amendment in the pleadings that amounts to withdrawal of important admission can not be allowed for simple reason that rights flow out of bold and clear admission made by the party to the suit to his adversary in the litigation. While a party is to enjoy full freedom to amend his pleadings, the dictates of public policy make it imperative that the matters concluded in wake of admissions in pleadings, should not be reopened and the parties pushed to uncertainty. In the present case the petitioner in his written statement as already pointed out made a categoric, clear, bold and ambiguous admission that the had executed Licence Deed dated 27.02.2005 and entered into possession of suit shop under the said Licence Deed, the petitioner also admitted that he had received a legal notice from respondent through lawyer Sh. M. A. Parray Advocate, requiring him to handover vacant possession of the suit shop to the respondent, and that the Licence Deed had come to an end by efflux of time and resultantly the petitioner was required to handover possession of the shop of the respondent. However, the case set up by the petitioner in opposition to the suit was that the respondent had already by his conduct extended his occupation of the suit shop and was thus estopped from asking the petitioner to vacate the suit shop. The petitioner further pleaded that dispute, if any, between the parties was only as regards rent to be paid during the extended period and not to the petitioner's occupation if the suit shop. 12. The petitioner further pleaded that dispute, if any, between the parties was only as regards rent to be paid during the extended period and not to the petitioner's occupation if the suit shop. 12. The petitioner by the proposed amendment intends to withdraw all admissions made in the written statement and introduce totally different, new and inconsistent case in opposition to the respondent's suit. Such amendment to the written statement can not be permitted, as it would not merely change the colour and complexion of the controversy between the parties but also it is very chemistry. The petitioner contrary to his stand in written statement, proposes to project himself as a tenant of the suit shop, denying that he was under contractual obligation to handover the vacant possession of the suit shop to the respondents and deny that he even received a legal notice from the respondent to hand over vacant possession of suit shop. The proposed amendment is bound to change nature of the suit in as much as the petitioner in effect by insisting that the Licence Deed in question was a piece of forgery and petitioner made to put his hands unto the Deed by misrepresentation, in effect seeks a declaration that the Deed in the facts proposed to be pleaded, is void and inoperative against the petitioner. 13. The above discussion apart, the order impugned in the present petition does not appear to be maintainable in wake of amendment to Section 115 CPC incorporated in the year 2009. The proviso to Section 115 (1).CPC has been by the aforementioned amendment substituted as under: - "Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings". 14. It follows that the revision under Section 115 CPC would be maintainable only in case the order deciding an issue, in the course of a suit or other proceedings, if made in favour of the party questioning order, would have finally disposed of the suit or other proceedings. The impugned order even if made in favour of the petitioner would not have disposed of the suit or other proceedings. The impugned order even if made in favour of the petitioner would not have disposed of the suit or other proceedings. The Supreme Court in Prem Bakshi & Others Vs. Dharam Dev & Others 2002 SC 599, while dealing with question of maintainability of a Civil Revision under amended Section 115 CPC has observed: - 5. The proviso to sub-Section (I) of Section 115 puts a restriction on the powers of the High Court in as much as the High Court shall not, under this Section vary or reverse any order made or, any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposes of the suit or other proceedings or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a subordinate Court if the said finally dispose of the suit or other proceeding. By way of illustration we may say that if a trial Court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revis-able. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a). In Shankar Co-op. Housing Society Vs. Savaraj Developers and Others AIR 2003 SC 2434 —the Supreme Court emphasizing that a person has not a vested right in the course of procedure and that once by a statutory change, the mode of procedure is altered, the parties, are to proceed according to the altered mode without exception, and that while a party to litigation has a right to file an appeal no such right is conferred to file a revision observed: - It is fairly a well settled position in law that the right of appeal is a substantive right. But there is no such substantive right in making an application under Section 115... 14. Section 11 Sis essentially a source of power for the High Court to supervise the subordinate courts. But there is no such substantive right in making an application under Section 115... 14. Section 11 Sis essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under S. 115 is not linked with a substantive right. The Court making a comparison of Section 115 CPC as it stood before the amendment and the Provision after the amendment held: - A comparison of two provisions of S. 115 as they stood before amendment and after the amendment of 1999 shows that while proviso (a) of the unamended provision has been retained in its totality. In the amended provisions clause (b) of the proviso has been omitted. It is to be noted that prior to the amendments to the Code by the old Amendment Act, the power of revision was wider. By the amendment, certain positive restrictions were put on the High Court's power to deal with the revisions under S. 115. Prior to the said amendment, it was not strictly necessary that the impugned order would have the result of finally deciding the Us or the proceedings in the lower courts. In fact, the power could be exercised in any case where jurisdictional error was committed by the original court or where substantial injustice had resulted. A plain reading of S. 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding, if the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the Us, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under S. 115. 15. The principle of law was reiterated in Surya Dev Rai Vs. Ram. Therefore, if the impugned order is of interim in nature or does not finally decide the Us, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under S. 115. 15. The principle of law was reiterated in Surya Dev Rai Vs. Ram. Chancier Rai AIR 2O03 SC 3044 where the Supreme Court holding a civil revision under Section 115 CPC against an order disallowing appeal questioning the trial Court order under Order 39 CPC as not maintainable observed: 4. Section 115 of the Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the Trial Court whether confirming, reversing or modifying the order of injunction granted by the trial Court. The reason is that the order of the High Court passed either way would not have the effect of finality disposing of the suit or other proceedings. The exercise of revisional jurisdiction such a case is taken away by the proviso inserted under sub-section (1) of S. 115 of the C.P. C, the amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expressions employed in S. 115 C.P.C., which enables interference in revision on the ground that the order if allowed to stand would occasion of failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the Revisional power with all types of interlocutory orders and this u>as substantially contributing towards delay in the disposal of the cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile Cl. (b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtained. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. In the aforementioned case an application grant of temporary injunction was rejected by the trial Court and so was the appeal preferred against the trial Court order. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. In the aforementioned case an application grant of temporary injunction was rejected by the trial Court and so was the appeal preferred against the trial Court order. The revision against the order of the appellate Court was held to be non-maintainable in view of the amendment made in Section 115 of CPC by the Amendment Act 46 of 1999, though remedy available under Articles 226, 227 was held to be available and intact, unaffected by the said amendment. 16. The law laid down in Shiv Shankr's case and Suray Dev Devi's (supra) was followed in V. B. Nayak Vs. S. R. Narsima Murthi & Others 2003 AIR-Kand H.C.R 3112 where revision against an order rejecting application for amendment was held to be not maintainable in wake of amendment to Section 115 CPC. 17. From the above discussion it emerges that the expression "other proceedings" used in Section 115(1) and proviso is not used in contradistinction to the expression "suit" and does not refer to the interim matters/ applications during course of the suit and decided at interim stage i.e. during pendency of the suit. The expression "other proceedings" on the other hand is used to bring other proceedings though having colour and character of a suit are known by a different nomenclature. Resultantly any order passed during pendency of the suit to be re-visable has to satisfy the test laid down under Section 115 (1) incorporated by the Amendment Act 2009 i.e. the order impugned is of such a nature that if passed in favour of the party questioning the order, would have clinched the suit or other proceedings. The instant revision petition in the said background is not maintainable as the order passed in favour of the petitioner would not have finally decided the suit or other proceedings within meaning of Section 115 (1) proviso. 18. For the reasons discussed, the trial Court has rightly rejected the application and declined grant of leave to amend the written statement. The impugned order does not suffer from any illegality. The trial Court can not be said to have acted in exercise of its jurisdiction illegally or with material irregularity is sought to be projected by the petitioner. The revision petition is accordingly dismissed along with connected CMP(s).