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2012 DIGILAW 681 (UTT)

Dileep Kumar Mishra v. Sunil Kandwal

2012-11-06

V.K.BIST

body2012
Judgment : V.K. Bist, J. Plaintiff/respondent instituted SCC suit no.01 of 2010 in the Court of Judge Small Cause Court, Tehri against the defendant/revisionist for recovery of arrears of rent, possession, damages, inter-alia, on the ground that father of plaintiff/respondent had given the disputed shop on rent @`1000/- per month to the defendant/revisionist. Earlier, father of the plaintiff/respondent had filed SCC suit no.01 of 2006 against the defendant/revisionist and defendant/revisionist had filed injunction suit no.63 of 2005. A compromise was entered between the parties and defendant/revisionist had given/surrendered possession of the shop to the father of the plaintiff/respondent and consequently the SCC suit was withdrawn. Later on defendant/revisionist had obtained the possession of the shop through the process of the court and made structural changes. The defendant/revisionist filed his written statement denying the plaint assertions on the grounds that the pleadings regarding the co-ownership is silent and respondent/plaintiff had no locus standi since the disputed shop had been transferred to the sister of plaintiff. 2. Thereafter an application was filed by the defendant/revisionist under order 7 Rule 11 for the rejection of plaint. The plaintiff/respondent also moved an application for amendment in plaint. Both the applications were decided by a common order dated 17.11.2011 whereby plaintiff/respondent’s application for amendment was allowed and defendant/revisionist’s application for rejection of plaint was rejected. Hence, this revision. 3. Learned counsel for the revisionist submitted that Judge Small Cause Court had failed to exercise the jurisdiction vested in it by law and had further exercised the jurisdiction not vested in it by law, by rejecting the application for rejection of plaint and by allowing the application of amendment of plaint. He argued that the Judge Small Cause Court failed to apply its judicious mind on the requirements and satisfaction of requirements of Order 7 Rule 11 of C.P.C., whose purpose is to check the frivolous and vexatious litigation. Application for plaint rejection was filed on the grounds that the plaint lacks cause of action, there is absence of landlord and tenant relationship and the previous SCC Suit of 1 of 1 of 2006 was unconditionally withdrawn by the father of the plaintiff, without permission to file a fresh. But Judge Small Cause Court had overlooked these aspects, while passing the order impugned. 4. But Judge Small Cause Court had overlooked these aspects, while passing the order impugned. 4. Learned counsel for the respondent, in reply, submitted that the application under Order 7 Rule 11 filed by the defendant/revisionist is only for the purpose delaying the suit. He contended that it was specifically pleaded in the plaint that after the death of the father of the plaintiff, he became co-owner of the shop. Prior to filing of suit, respondent sent a notice to the revisionist on 03.06.2009, which was received by him but he did not reply the same and never deposited the rent since 2008. Application filed by revisionist under Order 7 Rule 11 filed by the revisionist/defendant is misconceived and has rightly been rejected. 5. Application for rejection of plaint can be allowed only in the following conditions; “(i) where it does not disclose a cause of action; (ii) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (iii) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (iv) where the suit appears from the statement in the plaint to be barred by any law:” Counsel for the revisionist failed to prove that plaint was bad as per provision of Order 7 Rule 11 of C.P.C. The plaint discloses the cause of action. No conditions mentioned in Order 7 Rule 11 of C.P.C. are attracted. Therefore, the order passed by Judge Small Cause Court, Tehri does not suffer from any illegality. 6. Another submission of learned counsel for the revisionist is that the Judge, Small Cause Court ignored the trite law that clear cut admission made in pleadings cannot be withdrawn. The plaintiff has specifically averred that disputed shop was transferred by his father to the sister of plaintiff and by way of amendment the plaintiff wanted to fill up the lacuna. Counsel for the revisionist submitted that by way of amendment entirely new case has been set up, which cannot be permitted. 7. The plaintiff has specifically averred that disputed shop was transferred by his father to the sister of plaintiff and by way of amendment the plaintiff wanted to fill up the lacuna. Counsel for the revisionist submitted that by way of amendment entirely new case has been set up, which cannot be permitted. 7. Learned counsel for the respondent contended that learned Court below has not committed any illegality in allowing the amendment application of the plaintiff. He submitted that by way of amendment the plaintiff has not withdrawn the admission, but only rectified the typing mistake in the plaint. The plaintiff only made rectification or clarification of the averment made in the plaint. 8. I have considered the submission of learned counsel or the parties. In paragraph 15 of the plaint the plaintiff came up with the case that during his lifetime, the father of the plaintiff gave the shop in question to the sister of the plaintiff through unregistered sale deed. But, by way of amendment the plaintiff wanted to change the sentence by deleting two words and substituting three words in their place. By way of substitution the sentence would be that the shop in question was proposed to be given to the sister of the plaintiff. I am satisfied with the submission of learned counsel for the revisionist that by way of amendment the plaintiff wanted to fill up lacuna. It cannot be believed that by way of amendment the plaintiff wanted to rectify the typing mistake. The plaintiff cannot be permitted to change the case made in paragraph 15 of the plaint and substitute new case. 9. In (1976)4 SCC, 320 M/s Modi Spinning Mills Co. Ltd & Anr vs. M/s Laoha Ram & Co. the Hon’ble Supreme Court has held that the party cannot be allowed to change the case completely. In (2009)10 SCC,84 Revajeetu Builders & Developers vs. Narayanaswamy & Sons the Hon’ble Supreme Court has held that while allowing or rejecting the application for amendment, the Court is requested to see whether the application for amendment is bonafide or malafide and whether the proposed amendment fundamentally changes the nature and character of the case. I find that by allowing amendment application crucial fact mentioned in the plaint is being changed. The application does not appear to be bonafide. 10. In view of above discussion, the revision is partly allowed. I find that by allowing amendment application crucial fact mentioned in the plaint is being changed. The application does not appear to be bonafide. 10. In view of above discussion, the revision is partly allowed. Order dated 17.11.2011 passed by Judge Small Cause Court, Tehri Garhwal allowing the amendment application is set aside whereas the order dated 17.11.2011 rejecting the application under Order 7 Rule 11 C.P.C. is affirmed. 11. No order as to costs.