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2013 DIGILAW 561 (MP)

Mahendra Gupta v. Mohd. Yunus

2013-04-26

K.K.TRIVEDI

body2013
JUDGMENT : This petition under Article 227 of the Constitution of India is filed by the petitioner, who is a defendant in the suit filed by the respondent in the Court of II Civil Judge Class-I, Jabalpur, against the order dated 28-1-2013, passed in Civil Suit No. 77-A/2012, rejecting the application of the petitioner made under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as CPC for brevity) for amendment in the written statement. It is contended that a suit was filed by the respondent/plaintiff against the petitioner/defendant for recovery of rent due, alleging that the petitioner/defendant was tenant in Shop Nos. 395/1 and 395/2 and was in arrears of rent, therefore, suit was required to be filed for eviction under the provisions of section 12(1)(a) of the M. P. Accommodation Control Act, 1961. It is contended by the petitioner that by filing a written statement, such a claim made by the respondent/plaintiff was denied and it was categorically contended that the demise premises were in fact let out to two brothers, namely, the petitioner herein and his another brother, but the suit has been filed only against the petitioner. In the preliminary objection, it was said that in a Civil Suit earlier filed, a judgment and decree was passed and against the said judgment and decree, an appeal was preferred. The said judgment and decree will operate as res judicata. It is the case of the petitioner/defendant that issues were framed and evidence of the parties was recorded. However, later on an application was made by the petitioner seeking amendment in the written statement contending inter alia that specific pleas were to be raised in respect of tenancy and since such averments were required to be made, though pleas have been raised in the written statement in that respect to some extent, but amendment in the written statement would be necessary to clarify the stand taken by the petitioner/defendant. Such an application was opposed by the respondent/plaintiff and the same has been dismissed by the impugned order, therefore, this writ petition is required to be filed. 2. Such an application was opposed by the respondent/plaintiff and the same has been dismissed by the impugned order, therefore, this writ petition is required to be filed. 2. It is contended by learned counsel for the petitioner that amendment was not creating any hurdle in the way of the respondent/plaintiff as he was aware of the fact that there were two tenants in the suit premises and he was required to implead both of them as defendants in the suit. If that was the situation and if such a statement was made to some extent in the written statement, the Court below was not right in holding that a new plea is raised by the petitioner after the closure of trial of the suit by proposing the amendment in the written statement. Thus, it is contended that the approach of the Court below was incorrect and as such, the order impugned is liable to be set aside. The application for amendment in the written statement made by the petitioner is liable to be allowed. 3. Opposing such a claim made by the petitioner, learned counsel for the respondent has contended that specific pleadings were made in the plaint, copy of which is available on record as Annx.P/1. In paragraph 2 of the plaint, the respondent/plaintiff has categorically pleaded that the demise premises were let out to the petitioner/defendant and his brother Deepak Gupta by one Smt. Idda Bi, on monthly rent of Rs. 700/-. Though the shops were let out to two different persons, namely, the petitioner herein and his brother, yet the petitioner alone was running the shop in the name and style of Mahendra Kirana Store in both the shops by putting a door in the partition wall of the said shops. This particular averment made in the plaint was required to be denied by the petitioner/defendant in case he was of the view that shops were separately let out to the petitioner herein and to his younger brother. On the contrary, the petitioner has admitted the contents of para 2 of the plaint except that the door in the partition wall of two shops was put by the petitioner. He has stated that such a door was there right from the inception of tenancy. On the contrary, the petitioner has admitted the contents of para 2 of the plaint except that the door in the partition wall of two shops was put by the petitioner. He has stated that such a door was there right from the inception of tenancy. He has not objected to this that the shop in question was not let out to the petitioner only, but his brother was also a necessary party in the suit as the adjoining shop was let out to him. Nothing has been said in this respect in the entire written statement even when the pleadings were raised in detail. It is contended that the petitioner was well aware of the fact that earlier there were suits filed against the petitioner and his brother and, thus, if the petitioner was of the view that the brother of the petitioner was also to be impleaded as a party if at all any effective decree is to be obtained, he should have taken this stand at the initial stage when the written statement was filed. Virtually by admitting the averments made in the plaint, the petitioner has accepted the correctness of the allegation that shops were in fact in possession of the petitioner only. Now after the closure of evidence of the parties, new plea is being raised by seeking amendment in the written statement stating that the respondent was required to file a separate suit in respect of shop No. 395/1 which is in possession of Deepak Gupta, the brother of the petitioner/defendant. As the evidence of parties are closed, it will not be possible for the respondent/plaintiff to meet out such averments unless effectively evidence is recorded and, therefore, a prejudice would be caused to the respondent. It is, thus, contended that in view of the well settled law, such a proposed amendment of the petitioner was not found bona fide and the same has been rejected rightly. The law laid down by the Apex Court and the law as considered by this Court has been pointed out by learned counsel for the respondent and it is contended that the writ petition being devoid of any substance deserves to be dismissed. 4. Heard learned counsel for the parties at length and perused the record. 5. The law laid down by the Apex Court and the law as considered by this Court has been pointed out by learned counsel for the respondent and it is contended that the writ petition being devoid of any substance deserves to be dismissed. 4. Heard learned counsel for the parties at length and perused the record. 5. First of all, it is to be seen whether there was any justified reason in making such a prayer for amendment in the written statement or not. Admittedly, the respondent was the landlord and he filed the suits earlier. The result of the suits for eviction, filed on different grounds were well known to the parties. It was considered by the respondent/plaintiff that in fact the present suit for eviction was to be filed only and only against the petitioner herein. That being so, specific pleadings were made in paragraph 2. This fact has also been stated in paragraph 3 of the plaint by the respondent/plaintiff relating to filing of the suits against the petitioner herein and his brother, which was decreed by the trial Court, but the Appellate Court set aside the judgment and decree of the trial Court in those suits. In paragraph 4 of the plaint, the respondent/plaintiff has categorically averred about sending of a notice of demand for payment of the rent for the last 33 months which was sent by a cheque on 25-9-2009, by the petitioner to respondent/plaintiff. The said cheque was not encashed because of shortage of funds in the account of the petitioner. Thus, in fact the respondent/plaintiff has clearly indicated in the plaint that the suit is being filed against the petitioner/defendant only for recovery of the rent or for the eviction on the ground of non-payment of rent of both the demise shops. If at all the petitioner was of the view that he was tenant only in one shop and was responsible to pay rent only for one shop and such a suit filed against him for payment of rent of both the shops was not maintainable, the specific pleas were required to be raised by him in the written statement while denying such contentions made in the plaint by the respondent/plaintiff. Instead of doing so, the petitioner has accepted the correctness of averments made in paragraph 2 of the plaint to some extent and denied the part of it only that too with respect to fixing of a door on the partition wall of the shops. The petitioner has not disputed the averments made in paragraph 4 of the plaint wherein averments were made in respect of demand of rent made from the petitioner and sending of a cheque on 25-9-2009 by the petitioner. Further, in the written statement, the specific pleas were not raised with respect to the non-joinder of necessary party or even filing of a composite suit against the two tenants, with respect to two different shops. This indicates that in fact the petitioner was not in a position to establish that shops were let out to two different persons and that being so, such pleas were not raised in the written statement. After the completion of the trial, only when the matter was fixed for final arguments of parties, such an application for amendment was made raising such grounds. Therefore, it cannot be said that application was made bona fidely by the petitioner. 6. The law is well settled in respect of amendment in pleadings. In the case of Chander Kanta Bansal vs. Rajinder Singh Anand, 2008(4) MPLJ (S.C.) 269 = 2008 AIR SCW 3225, the Apex Court has held that due diligence has to be shown and it has to be demonstrated that such facts which are sought to be brought on record by way of amendment were not within the knowledge of the party concerned on earlier occasions. If such a fact was well within the knowledge, but was not brought in the pleadings, it cannot be said that the party concerned was diligent. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. "Due diligence " means doing everything reasonable, not everything possible. It further means such diligence as a prudent man would exercise in the conduct of his own affairs. Unless the party takes prompt steps, mere action cannot be accepted and a claim made in such a respect after the conclusion of the trial, cannot be said to be a bona fide act. It further means such diligence as a prudent man would exercise in the conduct of his own affairs. Unless the party takes prompt steps, mere action cannot be accepted and a claim made in such a respect after the conclusion of the trial, cannot be said to be a bona fide act. Further, in the case of Rajkumar Gurawara (Dead) through L.Rs vs. M/s S. K. Sarwagi and Co. Pvt. Ltd. and another, 2008 AIR SCW 4007, the Apex Court has considered that the amendment in the pleadings after commencement of the trial is to be considered only if there is no prejudice caused to the other party. Similar is the view expressed by the Apex Court in the case of Jaswant Kaur and another vs. Subhash Paliwal and others, 2010 AIR SCW 300 where it has been said that if an admission is made in the written statement, the same cannot be withdrawn by seeking amendment in the written statement as it would amount to nothing but an introduction of a new story. This would naturally cause prejudice to the other party. 7. This Court in the case of Pushpa Arora vs. Anita Arora, 2012(1) MPLJ 710 , has dealt with such a question and has given the findings based on the law laid down by the Apex Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others. (2009) 10 SCC 84 , and has taken note of various law laid down by the Apex Court as also by this Court and specifically has laid down the important factors which are to be taken note of while considering the application for amendment in the pleadings in the following manner:- "(i) Whether the amendment is necessary for proper and complete adjudication of the controversy involved in the suit. (ii) Whether the application has been made bona fide or with mala fide intention to protract the proceedings. (iii) Whether the proposed amendment, if allowed, would cause any prejudice to either side which cannot be compensated in terms of money. (iv) Whether by the proposed amendment a party is setting up a new case or cause of action which changes the nature and character of the case. (v) The application for amendment should not be rejected merely on the ground that delay alone, if the other side can be compensated in terms of cost. (iv) Whether by the proposed amendment a party is setting up a new case or cause of action which changes the nature and character of the case. (v) The application for amendment should not be rejected merely on the ground that delay alone, if the other side can be compensated in terms of cost. (vi) The amendment which is barred by limitation should not be allowed. (vii) In case of post trial amendment, the Court has to come to the conclusion that in spite of due diligence party could not have raised the matter before the commencement of the trial." 8. Though the aforesaid illustrations are only illustrative and not exhaustive, but still it has to be seen that the application for amendment in the pleadings are to be made bona fide and not with an intention to cause prejudice to the opposite party. Here in the case in hand/the petitioner who was aware of all such happenings and the pleadings, has deliberately not made any pleading in the written statement and virtually has admitted that he was the sole tenant in the suit premises. By way of amendment, the petitioner is trying to withdraw such an admission that too after closure of the trial. Nothing has been explained as to why such a pleading could not be raised at the relevant time by the petitioner. This being so, it cannot be said that the order passed by the Court below was not justified or correct. 9. In view of the discussions made hereinabove, the order passed by the Court below cannot be said to be bad in law. There is no substance in the writ petition. The same is dismissed. However, there shall be no order as to costs. Petition dismissed.