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2011 DIGILAW 381 (ALL)

KASHI SHARMA v. P. B. SRI AMBALAL PATEL

2011-02-17

RAKESH TIWARI

body2011
JUDGMENT RAKESH TIWARI, J.-Heard learned Counsel for the parties and perused the record. 2. This writ petition has been filed challenging the validity and correctness of the order and judgment dated 26.2.2011 passed by Additional Sessions Judge, Court No.7, Varanasi, by which amendment application has been rejected. 3. The brief facts of the case are that respondent-landlord filed SCC Suit No. 18 of 1998 against father of the petitioner for arrears of rent in regard to premises in dispute i.e. House No. K 1/21 Mohalla-Gau Ghat, Varanasi. The father of the petitioner died during pendency of the suit and the petitioner was substituted as his legal heir. The petitioners contested the suit by filing their' written statement (paper No. 51 Ga) denying the plaint allegation. The suit was decreed by Judge Small Causes Court, Varanasi vide order dated 21.5.2010. Aggrieved by the said order, the petitioners preferred revision No. 15 of 2010 under section 25 of Small Causes Court Act before the Court of District Judge, Varanasi, which is pending. It transpires from the record that during pendency of the said revision, an amendment application (paper No. 20 Ka) was filed in the written statement praying for follow~g amendment : **d- ;g fd tokcnsgh dkxt la[;k 51&x ds nQk 27 ds ckn ,d ethn nQk 27&, uhps fy[ks vuqlkj fy[k fn;k tk;s& 27&d- ;g fd izfroknhx.k }kjk rekeh jde fdjk;k tks oknhx.k }kjk ryc fd;k x;k gS e; 0 izfr’kr ‘kq) e; [kpkZ eqdnek vkfn izFke lquokbZ dh frfFk dks vnkyr gktk esa Vs.Mj tek dj fn;k x;k gSA fygktk izfroknhx.k nQ 114 dkuwu bUrdky tk;nkn dk Qk;nk ikus ds eq’rgd gS vkSj nkok oknhx.k ckcr csn[kyh ,oa olwyh fdjk;k blh vk/kkj ij [kkfjt fd;s tkus ;ksX; gSA** 4. Subsequently, objections (paper No. 22 Ga) to the amendment application were filed by the respondent-landlord inter alia that the plea sought by amendment application is already on record in paragraph 24 of the written statement and that the amendment application has been filed only to delay the proceedings. It was also stated in the objection that there is no provision for amendment at the stage of revision and that the petitioner is not entitled to any benefit in this regard. 5. It was also stated in the objection that there is no provision for amendment at the stage of revision and that the petitioner is not entitled to any benefit in this regard. 5. After hearing learned Counsel for the parties, the Court rejected the amendment application of the petitioner vide order dated 26.2.2011 on the ground that he has filed the same at the time when the case was listed for arguments of the parties. 6. According to the case set up by learned Counsel for the petitioner, it was at the time when the case was being prepared for arguments; that it came to his knowledge that he was not given correct advice by his Counsel and as such he has engaged another Counsel for moving an application for bringing the correct facts by the amendment in his written statement. From the averment made in paragraph 24 of the written statement, the Court found that he had not deposited the entire rent and had also moved an application in the suit for depositing the same under section 20 (4) of V.P. Act No. 13 of 1972. Averments made in paragraph 24 of the written statement are as under: **;g fd ge izfroknhx.k ds firk us Lohd`r nj ls leLr cdk;k ,oa [kpkZ eqdnek o lwn 9 izfr’kr ekgokjh dh nj ls tksM+dj varxZr nk0 20 ¼4½ ;w0 ih0 ,sDV 15 lu~ 72 b0 tek djus gsrq izkFkZuk&i= vnkyr esa nkf[ky fd;k Fkk ftl ij oknhx.k }kjk vkifRr fd;s tkus ds dkj.k ml ij vkns’k ikfjr ugha gks ldrk Fkk vkSj ;fn U;k;ky; mijksDr izkFkZuk&i= Lohdkj dj ysrh gS rks izfroknhx.k vfoyac :I;k tek dj nsaxsA** 7. The Court therefore held that petitioner should have deposited the rent and also moved application for amendment in the written statement before the JSCC Court. 8. It appears from record that the revisionist has submitted before the Revisional Court that he had moved an application in the Court below for depositing the rent, but the same was neither pressed nor there is any such averment in the writ petition that application has been pressed but was not considered by the Court in suit. The petitioner has not explained the reason why he filed application for amendment in written statement in revision when the case was listed for argument and as such the Revisional Court has not found the amendment to be justified. The petitioner has not explained the reason why he filed application for amendment in written statement in revision when the case was listed for argument and as such the Revisional Court has not found the amendment to be justified. Moreover, it also appears from the record that the plea taken by the petitioner is inconsistent with the plea taken in his written statement. 9. Learned Counsel for the petitioner at this stage submits that by the said amendment only legal aspect was to be added and by the said amendment right of the respondent-landlord will not be prejudiced. 10. In this regard he has placed reliance upon a judgment rendered in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others,1 2007 (68) ALR 166 (SC) = 2007 (54) AIC 76 (SC). wherein the Court has held that "in the case of amendment of a written statement, the Courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case." 11. He has further relied upon a judgment rendered in the case of Rajendra Kumar Rastogi v. Yogeshwar Prasad and others, 2 2005 (60) ALR 439. wherein it has been held that apprehension of opposite party on delay in disposal removed by fixing date for appearance before Revisional Court and had directed the Revisional Court to decide revision after allowing amendment sought tenant. In that case the tenant had made an application for amendment of written statement to incorporate details of deposits made to get benefit of protection against eviction under section 20 (4) of V.P. Rent Act. This application was rejected by the Revisional Court observing that it was meant to delay disposal. 12. It is not in dispute that the Court should be liberal in allowing the amendment. However, the amendment was sought by the petitioner after the trial was commenced and the case was being listed for final arguments for last 3-4 occasions. 13. According to the petitioner, amendment sought is only legal plea while learned Counsel for the respondent submits that this plea has already been taken by the petitioner in his written statement. Hence the petitioner can take this plea in his argument if he so desires, but the cases cited by the petitioner are of no help to him. 13. According to the petitioner, amendment sought is only legal plea while learned Counsel for the respondent submits that this plea has already been taken by the petitioner in his written statement. Hence the petitioner can take this plea in his argument if he so desires, but the cases cited by the petitioner are of no help to him. No illegality in thE! order of the Court below rejecting amendment has been pointed out by the petitioner and in view of the fact that plea taken by the petitioner in the amendment application has been found to be inconsistent with the written statement. No interference in the order impugned is required by this Court in exercise of its extraordinary powers under Article 226 of the Constitution of India. 14. The writ petition is, accordingly, dismissed. No order as to costs. Petition Dismissed.