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2012 DIGILAW 710 (JHR)

Prabhat Kumar Shah v. Anand Kumar Modi

2012-05-07

P.P.BHATT

body2012
Order 1. Heard the learned counsel for the parties. 2. The petitioners, by way of filing this petition under Article 227 of the Constitution of India, have prayed for quashing the order dated 25.1.2012 passed in Title Appeal No. 120/10 by the learned Addl. Judicial Commissioner-IV, Ranchi, whereby the learned court below has been pleased to reject the amendment application filed by the petitioners under Order VI Rule 17 of the Code of Civil Procedure. 3. The brief facts of the case are as under; The petitioners are running a shop in the name and style of New Bihar Medical Store (Agencies), situated at Kutchery Road, Ranchi and the respondent is alleged land owner of the said shop premises. The respondent filed an eviction suit, being Eviction Title Suit No. 7 of 2003 in the court of learned Addl. Munsif-I, Ranchi seeking eviction of the petitioners from the suit premises. The petitioners appeared in the aforesaid suit and denied the claim of the respondent. The learned court below after framing the requisite issue decided the suit against the present petitioners. The petitioners being aggrieved by the said decision, preferred a title appeal, being Title Appeal No. 120 of 2010 in the court of learned Judicial Commissioner, Ranchi and during the pendency of the appeal the petitioners filed an application under Order VI, Rule 17 of the Code of Civil Procedure, seeking amendment of the written statement filed in the suit but learned court below after taking into consideration the reply filed by the respondent vide its order dated 25.1.2012 has rejected the application filed by the petitioners for amendment under Order VI Rule 17 of the Code of Civil Procedure. 4. Learned counsel for the petitioner by referring Annexure 3 i.e. amendment application submitted before the learned court below pointed out that the petitioner requested the court below to allow the amendment by inserting para 13A in the written statement filed in the suit which reads as under;- “13A.-That the plaintiff has only few days back i.e. in the last week of June, 2011 started renovating and installing fixtures and furnitures in a very big room adjacent to the suit premises for doing business as claimed in the suit. The said premises is most suitable and convenient for the plaintiff to conduct business as claimed in the suit.” 5. The said premises is most suitable and convenient for the plaintiff to conduct business as claimed in the suit.” 5. It is submitted that the aforesaid amendment application was being filed due to subsequent development of the facts, which came to the notice of the present petitioners. It is also submitted that the aforesaid amendment was necessary for effective adjudication of the appeal specially because the petitioner dooring the trial of the suit took pleas that there are several vacant shops in the suit premises itself and the alleged ground of requirement of the petitioners' shop is not bonafide. It is also submitted that the learned court below without properly appreciating this fact come to the conclusion that the proposed amendment as sought for by the petitioner is not having any concerned with the suit premises and by allowing the same the nature of the suit is likely to be changed. Learned counsel for the petitioner in support of his submission has referred to and relied upon the judgment delivered in the case of Jai Prakash Gupta Vs. Riyaz Ahmad and Another reported in 2009(10) SCC 197 . 6. As against this, learned counsel for the respondent by referring counter affidavit submitted that the learned court below has not committed any error while passing the order impugned and has rightly rejected the amendment application because if the proposed amendment is allowed, the nature of suit is likely to be changed. It is also submitted that the petitioner (original defendant) is trying to cause the delay in disposal of the suit by creating one or the other such hurdles. The amendment is sought of was not at all necessary and relevant for the purpose of adjudication of the matter. Learned counsel for the respondent in support of his submission has also referred to and relied upon the judgment reported in 2001(2) SCC 604 (Gaya Prasad Vs. Pradeep Srivastava) 7. Considering the aforesaid rival submissions advanced by the learned counsel for the parties and from perusal of the materials on record, it appears that the court below has committed an error by not allowing the application for amendment filed by the present petitioners which is annexure-3 to the petition, because the amendment in question relates to the subsequent development, which has taken place during the pendency of appeal and it pertains to issue involved in this matter. It appears that the main issue involved in this matter is with regard to bona fide requirement of the plaintiff and the amendment in question appears to be in relation to the said requirement, which has taken place subsequent to the filing of the suit. It also appears that the other side will get an opportunity to controvert the statement made in the amendment application by way of filing the written statement /reply to the said amendment application at the appellate stage and the issue involved in the suit/appeal will be decided by the court on merits after considering the evidence on record and therefore, the argument advanced by the learned counsel for the respondent cannot be accepted looking to the nature of controversy. It appears that this aspect has not been properly considered by the court below. In view of the aforesaid position the judgment referred to and relied upon by the learned counsel for the respondent does not help to the respondent whereas the judgment referred to and relied upon by the learned counsel for the petitioner reported in 2009(10) SCC 197 is relevant and applicable to the facts and circumstances of the present case. Paras 19, 33 and 34 are relevant in deciding the present issue. Paras 19, 33 and 34 are reproduced herein below: “19. In our view, there cannot be any argument that the facts brought in by way of subsequent developments are relevant and it certainly heeds to be gone into on evidence. But since the litigation is pending for the last fifteen years, that is to say, from 1992, we are of the view that instead of setting aside the entire order of the appellate court and sending the case back to the same for fresh decision on subsequent developments which were brought before the High Court, only an order of limited remand to the appellate court ought to have been passed by the High Court, keeping the file pending before it and after receiving the evidence on the effect of subsequent developments on the question of bana fide need and comparative hardship from the appellate court and the finding of the appellate court on such question, considering the entire evidence and also the supplementary affidavit and counter affidavit filed by the parties and other materials on record, the writ petition can be decided afresh. 33. 33. In the event the appellate court finds it difficult to take evidence on its own, It will be open to it to frame the issue and send the same to take evidence to the prescribed authority who, in turn, will take the evidence of the parties and send the same to the appellate court for the purpose of considering the issue of bana fide requirement of the appellant landlord and comparative hardship of the parties. 34. In view of the statements made in the courter affidavit filed by the appellant landlord to the extent that he has got two grown up sons and a daughter and that being the position, the requirement of the present landlord has increased and, therefore, the respondent tenant is liable to be evicted. That being the position, we are, therefore, of the view that it would be open to the appellant landlord to file an application for amendment of the original release application for the purpose of incorporating the fact of the requirement of two sons and a daughter by amending the same, to which, it would be open to the respondent tenant to file written objection.” 8. In another Judgment of the Hon’ble Apex court in case of Rajkumar Gurawara Vs. S. K. Sarwagi And Company Private Ltd. & Ors. reported in (2008) 14 SCC 364, while dealing with issue of application filed U/O. VI , R.17 the Hon’ble Apex Court held as follows: “The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. The said Rule with proviso again substituted by Act 22 of 2002 with effect from 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.” 9. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.” 9. In view of the aforesaid facts and circumstances of the present case and in light of the judgment referred above , this Court is of the view that the present writ petition is required to be allowed and the order dated 25.1.2012 passed in T.A. No. 120/10 is set aside. The proposed amendment in written statement is ordered to be allowed. The Original defendant (petitioner herein) shall be permitted to carry out the said amendment accordingly. Since the respondent (original plaintiff) has reasonable apprehension of causing delay by the petitioner(defendant), necessary direction is also required to be issued that the petitioner shall cooperate in the proceeding and shall not cause unnecessary delay in further proceeding with the matter before court below. The court below shall also make endeavour to hear and decide the matter within six (06) months form the date of the receipt of the order. 10. With the above observations and directions, the instant writ petition stands disposed of.