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2011 DIGILAW 581 (ALL)

Sattar v. Ravindra Kumar

2011-03-08

RAKESH TIWARI

body2011
JUDGMENT Hon'ble Rakesh Tiwari, J. - Heard learned counsel for the parties and perused the record. Learned counsel for the parties agree that point involved in the writ petition is only legal and a short one, as such the petition may be decided at the admission stage. Hence with the consent of the parties the matter is being decided at the admission stage itself as no counter and rejoinder affidavits are required for deciding of legal point. 2. The petitioner has challenged the validity and correctness of the order dated 16.07.2009 passed by the District Judge, Meerut in SCC? Revision 19 of 2009 ( Sattar and another Vs. Ravindra Kumar) and the order dated 08.04.2009 passed by the Judge Small Causes Court, Meerut in SCC Case No. 53 of 2003 (Ravindra Kumar Vs. Sattar and another), copy of the orders are appended as Annexure nos. 1 and 2 to the writ petition. 3. The facts in brief are that the Judges Small Causes Court Meerut allowed the impleadment application of the respondent, paper no. 117Ga in S.C.C. Case No. 53 of 2003 Sattar and others Vs. Ravinder Kumar. 4. It appears from the record that Ravinder Kumar had filed the aforesaid suit against the petitioner for possession of house and recovery of rent. The case set out by the petitioner was that Kalka Prasad was the owner of the property in dispute. Razzak was the tenant of two rooms and after his death Sri Sattar and Jabbarr Singh became the tenants. 5. According to the averments made in the plaint, the property was inherited by Johrabar after the death of Kalka Prasad who used to recover the rent as owner and landlord of the disputed house. On his death, the property was inherited by Smt. Bibbo Devi, Dhanvir Singh and Smt. Durgesh Devi who executed a power of attorney in favour of Revinder Kumar, but no rent was paid by the petitioners since August 1974. By the tenant a notice was given to them under Section 106 of Transfer of Property Act. As no rent was paid by the tenants in spite of notice, Ravindra Kumar the whole of power of attorney filed a suit for eviction and recovery of rent from the petitioners / tenants. 6. By the tenant a notice was given to them under Section 106 of Transfer of Property Act. As no rent was paid by the tenants in spite of notice, Ravindra Kumar the whole of power of attorney filed a suit for eviction and recovery of rent from the petitioners / tenants. 6. It appears that evidence were filed by plaintiffs witnesses on 15.03.2005 and 23.12.2008 and thereafter an amendment application was submitted for impleading of Smt. Bibloo Devi, Sukhbir Singh, Dhramvir Singh and Smt. Durgesh Devi. This amendment application was allowed by Judge Small Causes Court, Meerut by the impugned order dated 08.04.2009 in SCC case No. 53 of 2003, Ravindra Kumar Vs. Sattar and Another. 7. Aggrieved by the aforesaid order, the petitioners/revisionists filed revision No. 19 of 2009, Sattar and another Vs. Ravindra Kumar. The revision was also dismissed by the District Judge, Meerut by order and judgment dated 16.07.2009, hence the petitioners have challenged the aforesaid two orders in this writ petition. 8. The contention of the counsel for the petitioner is that the amendment application has wrongly been allowed by the Judge Small Causes Court after filing of the affidavit of the plaintiffs witnesses in the year 2005. According to him this amendment is hit by provisio to Order 6 Rule 17 of C.P.C. which provides that no application for amendment shall be allowed after the trial has commenced. 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. 9. Counsel for the petitioner has argued that in fact amendment sought to be incorporated was not permissible and the proceedings of the suit stood vitiated at the very threshold and the plaint in question suffered from an inherent fatal defect which could not have been cured by filing of the amendment application rather the remedy was of filing fresh suit altogether. 10. It is stated that the amendment sought to be incorporated in the plaint had come a belated stage when the petitioner had already filed his written statement and exposed the infirmities in the claim of the contesting respondents, as such the amendment sought for was malafide for having been filed to circumvent the objection raised by the petitioner as the amendment sought by the application was his proviso to Order 6 Rule 17 C.P.C. 11. It has lastly argued that both the courts below have passed the judgment and orders impugned on irrelevant and baseless considerations while allowing the amendment application and in fact the amendment application is allowed, the stand of the petitioner will suffer irreparable loss and injury. 12. It is vehemently argued that in view of the Order 6 Rule 17 amendment could not have been allowed after the trial has commenced. Emphasis has been raised in the proviso to Rule 17 C.P.C. wherein the word used is ' shall' and not may' and it is therefore argued that it was obligatory for the court below first a finding to have recorded in spite of due diligence, therefore, the amendment application filed after the commencement of trial, without any reason disclosed by the plaintiffs for not having been added such a prayer at the time of filing of the suit was liable to be dismissed. 12. Per contra learned counsel for the respondents has submitted that the court has power to allow amendment at any stage and even after the commencement of trial. According to him, the witnesses had not been cross-examined and as such neither the trial had begun nor the tenant would have suffered any prejudice. 14. After hearing counsel for the parties and on perusal of record it appears that the plaintiffs sought for amendment incorporating the owner and landlord of the property as a party in the suit as the suit was filed before the Judge Small Causes Court by a person who was holder of power of attorney on behalf of owner/landlord. Only the array of parties was considered and nature of pleadings did not change by adding the landlord as party. 15. The plaintiffs witnesses are yet to be cross-examined where they can be cross-examined and if the application for amendment of real owner has been allowed it can not be said the case of the tenant would in any way be prejudiced. 16. In the facts and circumstances of this case, the application for amendment appears to be bonafide and does not cause any injustice and prejudice to the other side or takes away any rights of his right as it can not be also said that impleadment of the landlord is necessary or that he is not a necessary party for the adjudication of the real dispute between the parties. 17. 17. In my considered opinion, there is no illegality in the impugned order and this court is not inclined to exercise its extra ordinary and discretionary power under Article 226 of the Constitution of India for interfering in an interlocutory order in which no illegality is shown. 18. For the reasons state above, the writ petition is dismissed. 19. In the facts and circumstances, the courts below are directed to decided the suit in accordance with law within a period of four months from the date of production of certified copy of this order before him.