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Rajasthan High Court · body

2013 DIGILAW 1342 (RAJ)

Jameel Mohd. v. Durgesh

2013-07-23

VIJAY BISHNOI

body2013
Hon'ble BISHNOI, J.—By this writ petition, the petitioner has challenged the order dated 15.5.2013 passed by the learned Rent Tribunal whereby the application preferred by the petitioner under Order 6 Rule 17 CPC for amendment in the written statement was rejected. 2. Brief facts of the case are that the respondents No. 1 to 9 filed an application under Section 9 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as `the Act of 2001') against the petitioner for eviction of the shop in question on the ground of bonafide necessity and default. 3. The written statement/reply to the application was preferred on behalf of the petitioner wherein the petitioner denied that he is the tenant of the respondents and claimed that his brother Basir is tenant in the shop in question and he is doing his business. 4. The relevant averments from the written statement of the petitioner filed before the Rent Tribunal are reproduced hereinbelow:- ^^1- ;g fd vthZ dh dye la[;k 10¼1½ xyr gksus ls Lohdkj ugha gS oknxzLr nqdku c'khj ds fdjk;snkjh esa gS izR;FkhZ dk vthZnkj dh nqdku ls izR;{k :i ls dksbZ lEcU/k ugha gSA iSysl ekstM+h lsUVj ds uke ls c'khj gh O;kikj dj jgk gSA izR;FkhZ tehy dHkh Hkh vthZnkj dk fdjk;snkj ugha jgk gSA** ^^4- ;g fd vthZ dh dye la[;k 10¼4½ xyr gksus ls Lohdkj ugha gSA izR;FkhZ vthZnkj dk fdjk;snkj gh ugha gS rks fdjk;k cdk;k gksus dk iz'u gh mRiUu ugha gksrk gSA** fo'ks"k dFku ^^2- ;g fd oknxzLr nqdku dk izR;FkhZ dHkh Hkh fdjk;snkj ugha jgkA blfy, vthZnkj us izR;FkhZ dks xyr i{kdkj cuk dj vthZ is'k dh gS ftls [kkfjt QjekbZ tkosaA** ^^4- ;g fd vthZnkj us c'khj o mlds yM+ds dks i{kdkj ugha cuk;k gS blfy, Hkh vthZnkj dh vthZ [kkfjt QjekbZ tkosaA** 5. The petition has preferred an application under Order 6 Rule 17 CPC read with Section 151 CPC for amendment in the written statement while claiming that after his brother left for Kuwait in 1993-94, the petitioner became the tenant of the shop in question and is also paying rent month by month and, therefore, there is relationship of landlord and tenant in between the petitioner and the respondents. 6. A reply to the said application was preferred on behalf of the respondents No. 1 to 9. 7. 6. A reply to the said application was preferred on behalf of the respondents No. 1 to 9. 7. After hearing both the parties, the learned trial court has rejected the said application preferred by the petitioner while observing that the facts which the petitioner wants to incorporate in the written statement will change the nature of the written statement and new situation will arise before the Court which may complicate the matter. It is also observed by learned trial court that three witnesses on behalf of the applicant have been examined and if at this stage any amendment in the written statement is allowed, the matter will revert back to the stage from where it was started. It is further observed that the amendments sought for in the written statement will change the whole situation and will also effect the trial and, therefore, the application preferred by the petitioner for amendment in the written statement is not liable to be accepted. 8. The learned counsel for the petitioner has assailed the validity of the order passed by the learned trial court of rejecting the application for amending the written statement and argued that it is permissible under the law to take inconsistent pleas and the courts should be more liberal in allowing amendment of the written statement. 9. The learned counsel for the petitioner has further argued that the learned trial court cannot disallow the amendment in the written statement on the ground that the defendant is altering his defence. It is further contended by learned counsel for the petitioner that vide application for amending the written statement, the petitioner has simply sought to bring into an additional fact on record to the effect that earlier his brother was tenant in the shop in question and when he left for Kuwait, the petitioner became tenant of the respondent. It is also contended by learned counsel for the petitioner that by bringing this fact on record, the respondents will not be prejudice and, therefore, the trial Court has illegally rejected the application of the petitioner without looking into this aspect of the matter. 10. The learned counsel for the petitioner has relied upon the following decisions of Hon'ble Supreme Court:- (i) (2007) 5 SCC 602 = RLW 2007(3) SC 2583 - Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors. 10. The learned counsel for the petitioner has relied upon the following decisions of Hon'ble Supreme Court:- (i) (2007) 5 SCC 602 = RLW 2007(3) SC 2583 - Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors. (ii) JT 2006 (7) 139 = RLW 2006(4) SC 3360 - Baldev Singh & Ors. vs. Manohar Singh & Anr. etc. 11. Heard learned counsel for the petitioner and perused the material placed on record and the order impugned. 12. In the written statement to the application, the petitioner has completely denied the relationship of tenant and landlord between him and respondents No. 1 to 9 while clearly stating that his brother is running his business in the shop and the petitioner was never a tenant of the respondent at any point of time. By way of application for amendment in the written statement, now the petitioner is claiming himself as tenant of the respondents and has also claimed that he is regularly paying the rent and as such the petitioner wants to wriggle out from his earlier statement. 13. It is to be noted that as per the provisions of Section 9 of the Act of 2001, non-payment of due rent and denial of tenancy are grounds on the basis of which the Rent Tribunal can order for eviction of tenant and once the petitioner has clearly averred in the written statement that he is not tenant of the premises in question, now he cannot be allowed to wriggle out from such statement. 14. The proposition of law laid down by the Hon'ble Supreme Court in Usha Balashaheb Swami and Baldev Singh's case (supra) is not in dispute but the same is not applicable in the present controversy because by way of amendment in the written statement, the petitioner is not explaining his admission. 15. There is another aspect of the matter which is also to be taken into consideration that as per the proviso of the Order 6 Rule 17 CPC., no application for amendment can be allowed after the trial has commenced unless the Court comes to the conclusion that inspite the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter which now sought to raise by way of amendment, before the commencement of the trial. In the present case, the trial has already been commenced and the three witnesses produced on behalf of the respondents have already been examined. From the perusal of the application preferred on behalf of the respondents, it is clear that he has nowhere averred in the application that he has failed to raise the matter before commencement of the trial which he now wants to raise despite due diligence. In absence of any such averment of this nature in the application, the application preferred by the petitioner is liable to be rejected. 16. The Hon'ble Apex Court after taking into consideration the proviso to Order 6 Rule 17 of the Code of Civil Procedure in Rajkumar Gurawara (dead) Thr. LRs. vs. M/s. S.K. Sarwagi & Co. Pvt. Ltd. & Anr. reported in AIR 2008 SC 2303 has held that:- "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 able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event; it is incumbent of the part of the Court to satisfy the conditions prescribed in the proviso." 17. The Hon'ble Supreme Court in other judgment rendered in Vidyabai & Ors. vs. Padamalatha & Anr. reported in AIR 2009 SC 1433 = 2009(2) RLW 1581 (SC) after noticing the earlier judgment of Apex Court rendered in Baldev Singh & Ors. vs. Manohar Singh & Anr. etc. (supra) held as under:- "42. It is to be noted that the provisions of Order 6 Rule 17 C.P.C. have been substantially amended by the CPC (Amendment) Act, 2002. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied." 18. In view of the above, this Court is of the opinion that the learned trial court has not committed any illegality in rejecting the application preferred by the petitioner for amendment in the written statement and, therefore, no interference is called for in the order passed by the learned trial court dated 15.5.2013 while exercising powers under Article 226 & 227 of the Constitution of India and the writ petition filed by the petitioner is, therefore, dismissed.