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2013 DIGILAW 3026 (ALL)

Shambhu Dutta v. Chandrika Prasad Pandey

2013-12-12

RITU RAJ AWASTHI

body2013
JUDGMENT Ritu Raj Awasthi, J. Mr. N.K. Shukla, Advocate has put in appearance on behalf of respondent and files counter affidavit, the same is taken on record. 2. Heard learned counsel for revisionist as well as learned counsel for respondent and gone through the record. 3. This revision has been filed under Section 25 of the Provincial Small Causes Courts Act, 1887 against the order dated 12.11.2013 passed in SCC Suit No. 10 of 2013 (Chandrika Prasad Pandey Vs. Shambhu Dutta) whereby the application (C-33) for amendment of the written statement was rejected. 4. Learned counsel for the revisionist submits that the application filed under Order VI Rule 17 CPC seeking amendment in the written statement filed by the revisionist-defendant in a suit for ejectment and arrears of rent of the respondent-plaintiff was rejected by the learned Court below in most illegal manner as the amendment in the written statement was sought on the basis of the subsequent event which has come to the knowledge of the revisionist-defendant during pendency of the suit. 5. It is submitted that the plaintiff was not the original owner of the property in question. One Jagnnath Sahu had executed general power of attorney in favour of one Rati Prasad. He was merely an allottee of Lucknow Development Authority. The sale-deed in favour of Jagnnath Sahu was executed only on 04.03.2005. The power of attorney Rati Prasad had executed the sale-deed in favour of the plaintiff on 16.3.2005. The sale-deed dated 16.3.2005 was not filed at the time of filing of the SCC Suit which was brought on record subsequently on the direction of the Court. On filing of the said sale-deed, the revisionist-defendant came to know that the plaintiff had become owner of the property in question only on 16.3.2005. The plaintiff as such cannot claim to be landlord of the property in question prior to 16.3.2005. It is submitted that under Order VII Rule 14 CPC the plaintiff was required to file the sale-deed at the time of filing of the suit and in absence of the same the suit itself was not maintainable. 6. The plaintiff as such cannot claim to be landlord of the property in question prior to 16.3.2005. It is submitted that under Order VII Rule 14 CPC the plaintiff was required to file the sale-deed at the time of filing of the suit and in absence of the same the suit itself was not maintainable. 6. It is also submitted that the learned Court below without properly considering the fact that the revisionist-defendant had come to know about the said sale-deed only on filing it in the Court i.e. after filing of the written statement, as such, the amendment sought in the written statement was necessary. 7. Learned counsel for the revisionist in support of his submissions has relied on certain judgments with respect to the legal proposition that hyper technical view shall not be taken by the Court while considering the amendment application, the amendment shall be allowed on the basis of the subsequent event and amendment of plaintiff seeking withdrawal of admission of fact shall be allowed for effective adjudication of dispute. The case laws relied by the revisionist's counsel are as follows: (1)Satish Kumar Shah and Others Vs. A.D.M. (Civil Supplies), Varanasi and others; [2013 (124) AIC 321 (ALLD., H.C.]. (2)Rajoli Siva Rami Reddy Vs. Malepati Subba Rangiah and others; [2012 (109) AIC 498 (A.P.,H.C.)]. (3)Kanukolanu Vimala, Appellant Vs. S. Lakshmana Rao and others, Respondents; AIR 1998 Andhra Pradesh 338. (4)Shikharchan Jain, Appellant Vs. Digamber Jain Praband Karini Sabha and others, respondents; AIR 1974 Supreme Court 1178. (5)Panchdeo Narain Srivastava, Appellant Vs. Km. Jyoti Sahay and another, respondents; AIR 1983 Supreme Court 462. 8. Learned counsel for respondent, on the other hand, submitted that the said amendment application was moved deliberately with intention to delay the proceedings and there was no necessity to allow the amendment in the written statement. It is submitted that the suit for arrears of rent and ejectment was filed in the year 2013 with specific plea that the cause of action has accrued to the plaintiff against the defendant on 01.10.2011 when the rent for the month of September, 2011 had become due and was not paid. It was also the case of the plaintiff that when the rent and water tax had become due and were not paid on 07.01.2013 a notice dated 08.01.2013 was sent to the revisionist. The SCC Suit was thereafter filed on expiry of the notice period. It was also the case of the plaintiff that when the rent and water tax had become due and were not paid on 07.01.2013 a notice dated 08.01.2013 was sent to the revisionist. The SCC Suit was thereafter filed on expiry of the notice period. 9. Submission is that at the time when the cause of action accrued to the plaintiff, the plaintiff was the original owner of the property in question as the sale-deed in favour of plaintiff regarding the house in question was executed on 16.3.2005. 10. It is further submitted that the revisionist has not approached the Court with clean hands as he himself has admitted the tenancy in his written statement. Earlier, in the year 2011 the revisionist had failed to pay the monthly rent of the property in question. The plaintiff had sent a notice dated 29.8.2011. Subsequently, thereafter the revisionist had entered into a compromise by way of an agreement with the plaintiff wherein it was specifically mentioned that the revisionist has paid the entire arrears of rent to the plaintiff and undertakes that he will vacate the house in question within two years and would handover the physical possession to the plaintiff. The revisionist had also agreed that w.e.f. September, 2011 till 31st August, 2012 the rent of the house in question would be Rs. 1700/- per month which would be increased at the rate of Rs. 200/- per year. 11. It is submitted that the revisionist has failed to pay the arrears of rent as per the said agreement and, as such, the aforesaid suit was filed. 12. Learned counsel for revisionist, in his reply, submitted that the revisionist does not admit the aforesaid agreement which is not admissible as an evidence due to deficiency in stamp duty and even otherwise. 13. I have considered the submissions made by the parties' counsel and gone through the records. 14. The order impugned indicates that the application (C-33) seeking amendment in the written statement filed by the revisionist was rejected by the learned Court below. 15. It is the admitted position that the suit in question was fixed for evidence at the time when the said amendment was filed by the revisionist-defendant. 14. The order impugned indicates that the application (C-33) seeking amendment in the written statement filed by the revisionist was rejected by the learned Court below. 15. It is the admitted position that the suit in question was fixed for evidence at the time when the said amendment was filed by the revisionist-defendant. The learned Court below has taken the view that the defendant does not claim himself to be the owner of the property in question, as such, has no right to dispute the execution of the sale-deed. The amendment in the written statement, as proposed, is not necessary. In the suit in question, the issue which requires to be considered is whether there exists relationship of landlord-tenant between the plaintiff and defendant or not. The said issue is to be determined on the basis of evidence. Since the defendant does not claim himself to be the owner of the property in question, as such, has no right to dispute the ownership of the property in question on the basis of the alleged sale-deed. 16. It is to be noted that the cause of action as set out in the suit clearly indicates that the same had accrued to the plaintiff on 01.10.2011 and when the revisionist-defendant had failed to pay the rent for the month of September, 2011 the suit was filed on expiry of the notice period. At the relevant time, plaintiff was the owner of the property in question. The relevant paragraph giving cause of action in the plaint which is on record as Annexure No. 12 to the revision on reproduction reads as under: "9. That the cause of action accrued to the plaintiff against the defendant on 01-10-2011 (First October two thousand eleven) when the rent for the month of September, 2011 (Two thousand eleven) as the monthly rent is became due and was not paid and when the rent and water tax became due and was not paid on 07-01-2013 (Seven January two thousand thirteen) when the notice was sent on 08-01-2013 (Eight January two thousand thirteen) when the notice was delivered on 09-01-2013 (Nine January two thousand thirteen) when the period given in the notice was expired and the defendant failed to comply with the notice, at house No. D.S. 48 (Forty Eight) Hata Laxman Das, Shivaji Marg, Lucknow, within the jurisdiction of this Hon'ble Court." 17. The revisionist-defendant in his written statement has admitted the tenancy in the property in question. 18. It is also to be noted that the SCC Suit for arrears of rent, damages and ejectment was filed in the year 2013. 19. In view of the aforesaid fact, I am of the considered opinion that the proposed amendment sought in the written statement was not at all necessary for the purpose of deciding the issues involved in the suit, as such, the view taken by the learned Court below in rejecting the amendment application (C-33) is just and proper and does not require any interference. 20. So far as the judgments cited by the learned counsel for revisionist are concerned, they are all on the legal propositions as mentioned above regarding which there is no dispute, as such, they are not relevant for the purpose of deciding the controversy involved in the present revision. 21. The revision being devoid of merit is dismissed.