Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 918 (ALL)

Kamala Prasad Gaurh v. Shanta Pathak

2013-03-20

ASHOK PAL SINGH

body2013
Ashok Pal Singh, J.— 1. This revision under Section-25 Provincial Small Cause Court Act read with Section 115 C.P.C. has been preferred by the revisionist against the order dated 15.5.2012 passed by Judge small cause Court, Faizabad in SCC Suit No.-17 of 2007, Shanta Pathak Vs. Kamla Prasad Gaur, whereby amendment application 99-A moved by the revisionist for amendment in his written statement has been rejected. 2. I have heard Sri K.M.Dubey, learned Counsel for the revisionist and Sri Vijay Bahadur Verma, learned Counsel for the respondent and perused the material available on record. This revision with the consent of the learned Advocates is being decided on the merits of the case at the admission stage itself. 3. It is submitted by the learned Counsel for the revisionist that some legal pleas were being taken in his written statement by means of amendment application moved by him. Learned Court below has rejected his application failing to consider that an amendment raising legal pleas can always be allowed and an amendment application for the same has to be considered liberally. Learned lower Court has acted illegally and with material irregularity in not allowing the same. On the other hand supporting the impugned order it has been submitted by the learned Counsel for the respondent that the sole purpose of moving the amendment application by the revisionist was only to delay the proceedings because of which the learned lower court has rightly rejected his said application. 4. Perusal of the impugned order discloses that the amendment application moved by the revisionist for getting his written statement amended has been dismissed inter-alia on the ground that two legal pleas were proposed to be introduced by the revisionist in his written statement by moving the aforesaid amendment application. The first legal plea was that according to the own admission of the plaintiff landlord in a previous suit O.S.-340 of 2002 Kamlesh Prasad Vs. Shanta Pathak provisions of Act 13 of 1972 were not applicable regarding the property in question. The second legal plea was based upon the fact that no notice was either issued to the revisionist nor any such notice was received by him. 5. Shanta Pathak provisions of Act 13 of 1972 were not applicable regarding the property in question. The second legal plea was based upon the fact that no notice was either issued to the revisionist nor any such notice was received by him. 5. As regard the proposed first legal plea it was found by the trial court that the question of applicability of Act 13 of 1972 in regard to the house in question and jurisdiction of the small cause court to decide the matter vested not upon the admission of the landlord but on the fact as to whether the disputed house was covered under the provisions of Section-2 of Act 13 of 1972 or under the provisions contained in Section 15 Small Causes Court Act. The learned trial court was of the view that no fruitful result was to be achieved by the revisionist by inserting the said legal plea in his written statement. As regards the second plea proposed to be taken by the revisionist, the lower court recorded its findings that already a plea was there in his written statement that no legal notice had been given by the plaintiff to him nor any such notice was served upon him and that the plaintiff's suit was liable to be dismissed in the absence of any legal notice given to him. It is further noticed that learned trial court also found that the amendment application of the revisionist was not liable to be allowed because of the fact that the order had already been passed against the revisionist to proceed the case ex-parte against him and his restoration application had been allowed on costs which had not been paid by him. 6. The manner in which the proposed amendment has been sought to be incorporated in his written statement by the revisionist, it is amply clear that the said amendment application by the revisionist has been moved with a malafide intention only to delay the proceedings of the suit. It is also evident from the material made available that a conditional order was passed on the recall application of the revisionist for recalling the order to proceed ex-parte against him. Undisputedly, the revisionist has failed to fulfill that condition by making any payment of costs to the respondent which was imposed upon his restoration application as a condition precedent for recalling the ex-parte order. Undisputedly, the revisionist has failed to fulfill that condition by making any payment of costs to the respondent which was imposed upon his restoration application as a condition precedent for recalling the ex-parte order. It is thus clear that without the order to get the ex-parte order set aside become absolute by making payment of costs the revisionist has moved the present amendment application. Thus his application was not maintainable and his bonafides in moving the said amendment application also becomes suspicious. 7. As a general rule it is a settled principle of law that the courts should be liberal in allowing the amendment applications but in case an amendment application is being moved with a malafide intention only to delay the proceeding that would fall under the exception to the above general rule and such an application for amendment would then be liable to be dismissed. 8. Considering the entire facts and circumstances of the present case this court is of the view that no illegality or infirmity has been committed by the court below in dismissing the amendment application of the revisionist by passing the impugned order. 9. The revision is therefore dismissed as having no merits, in it. _____________