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2014 DIGILAW 1004 (ALL)

Salma v. District Judge Lucknow

2014-03-28

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra,J.: - Heard Shri Surya Kant, learned counsel for the petitioners and Shri U.A. Khan, learned counsel for the respondents. 2 This writ petition filed by a tenant seeks a writ of certiorari quashing the order dated 6.11.2013 passed by the District Judge, Lucknow in revision under Section 25 by the Provincial Small Cause Court Act affirming an order partly rejecting an amendment application filed by the petitioner for amending the written statement. The facts relevant to the controversy involved in the writ petition are as follows. 3 The landlady, Smt. Zareena Begam filed a suit for arrears of rent damages and eviction through power of attorney holder her husband, on the ground that the accommodation in dispute situate in Mirzaganj, Malihabad, Lucknow was let out to Hasan Aslam at Rs.450/- per month rent; the tenant Mohd. Aslam died and the petitioners are his heirs and now tenants; the rent from August 1997 to March 1998 amounting to Rs. 3,600/- is unpaid; that a demand notice demanding rent remained uncomplied, another notice dated 13.4.1998 was served upon the tenant on 18.4.1998 whereby the tenancy was terminated. Even this notice remained uncomplied with and hence the suit. 4 The tenants filed the written statement admitting the relationship of landlord and tenant between them. It was however claimed that the rent was only Rs. 130/- per month and not Rs. 450/- as alleged. The tenants denied being in arrears of rent. It was also alleged that the husband of the petitioners had been inducted about twelve years ago at a monthly rent of Rs. 100/-. Thereafter one room was constructed with the permission of the landlady whereupon the rent was enhanced to Rs. 130/- per month. It was lastly alleged that the rent for the period from 1.8.1997 to 31.7.1998 had been paid by cheque which had not been encashed due to ulterior motive and the suit had been filed. 5 The trial court by its judgment and order dated 22.9.2007 dismissed the suit with the finding that the rent of the accommodation in dispute was Rs. 150/- per month and that there was no default in payment of rent. 5 The trial court by its judgment and order dated 22.9.2007 dismissed the suit with the finding that the rent of the accommodation in dispute was Rs. 150/- per month and that there was no default in payment of rent. 6 The landlady preferred a revision under Section 25 of Provincial Small Causes Court Act which was allowed vide order dated 26.7.2011 and the matter was remanded to the trial court to decide the matter a fresh in the light of the observations made in the judgment. 7. It is the case of the petitioner that after remand, dates were fixed for the evidence of the plaintiff, but since no evidence was filed, the evidence of plaintiff was closed and date was fixed for the tenants' evidence. It is at this stage on 20.9.2013, the tenants-petitioners filed an amendment application paper no. 112-C. This application has been rejected in part by the impugned order. As regards the rejection of the amendment application the court has recorded that the same is not bona fide and is an attempt to reopen the evidence in the case. 8 Aggrieved by the order of the trial court, the petitioner preferred revision no. 242 of 2013 which has been dismissed by the order dated 6.11.2013 on the ground that the petitioners are trying to set up a new case by means of an amendment; the trial court in its discretion has rejected the amendment application which was in accordance with law and therefore the revision was liable to be dismissed. Aggrieved by the dismissal of the revision, the petitioners have filed the instant writ petition. It transpires that the writ petition came up for admission on 21.2.2014 on which date the counter affidavit was filed by the contesting respondent. A weeks time was granted to file a rejoinder affidavit and the matter was directed to be listed in the week commencing 10.03.2014. 9. The matter was thereafter listed on 12.3.2014 when the rejoinder affidavit was filed in Court which was taken on record and the matter was heard finally. 10. A weeks time was granted to file a rejoinder affidavit and the matter was directed to be listed in the week commencing 10.03.2014. 9. The matter was thereafter listed on 12.3.2014 when the rejoinder affidavit was filed in Court which was taken on record and the matter was heard finally. 10. Shri Surya Kant, learned counsel for the petitioner made several submissions on the merits of the case but has ultimately confined his case to the point that the amendment which has been refused, was sought to bring on record certain subsequent events having a material bearing on the controversy pending adjudication and under the circumstances the courts below were not justified in refusing the amendment. 11. From the submission of the parties as also perusal of the record it emerges that the tenants had pleaded that the landlady had never appeared in Court and that the suit had been instituted only through power of attorney holder, namely, the husband of the landlady. It also appears that this was one of the grounds on which the trial court had dismissed the suit. 12. By means of the amendment application, the petitioners want to bring on record the fact that the petitioner no. 1 met the landlady at gathering which took place on the death of a common acquaintance and during the meeting the landlady informed the petitioner that she had not authorized her husband to institute the suit. Specific dates and other details regarding the aforesaid conversation are also sought to be incorporated by means of the amendment. In the light of the aforesaid facts, the learned counsel for the petitioner has submitted that the amendment sought was as regards a subsequent event which had taken place in the recent past and had a material bearing on the controversy between the parties. He has relied upon a large number of decisions to buttress his contention. It is not possible to refer to all the decisions that have been cited. However some of the relevant authorities cited shall be referred to at the appropriate place in this judgment. 13 In rebuttal, the learned counsel for the respondent, Shri U.A. Khan has submitted that the proposed amendment is clearly mala fide and has been made only with the object of delaying the disposal of the case on merits. However some of the relevant authorities cited shall be referred to at the appropriate place in this judgment. 13 In rebuttal, the learned counsel for the respondent, Shri U.A. Khan has submitted that the proposed amendment is clearly mala fide and has been made only with the object of delaying the disposal of the case on merits. He has specifically referred to page 74 of the counter affidavit filed by the him to show that the conduct of the petitioner-tenant is not bona fide. He further states that the amendment seeks to dislodge the landlady from her admitted position of landlady and therefore the amendment cannot be allowed. He has lastly submitted that an application made by the petitioners for summoning the landlady as the tenants' witness had already been rejected. Since similar application had already been rejected the amendment was also rightly rejected. He therefore submits that the writ petition is liable to be dismissed. Even the learned counsel for the respondents has referred to a large number of the authorities which shall also be referred to at the appropriate stage. 14. From the rival contentions the position that emerges is that the crux of the controversy in the writ petition is as to whether an amendment application seeking to incorporate a subsequent event in the written statement can be allowed or not. 15. The learned counsel for the petitioner has urged that an amendment application filed to bring on record a subsequent event by means of an amendment application should necessarily to be allowed. He has relied upon 1975 (1) SCC 770 Pasupuleti Venkateswarlu vs. The Motor & General Traders wherein the apex court held: " If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decreetal remedy." 16. The apex court has again in AIR 1974 Supreme Court 117 Shikharchand Jain vs. Digamber Jain Praband Karini Sabha & Others has, laid down "But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation or (3) to do complete justice between the parties (See Raj Charan v. Biswanath, AIR 1915 Cal 103). 17. In another judgment, namely, 2009 (3) ARC 427 Surender Kumar Sharma vs. Makhan Singh the apex court has held as follows: - "So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed." 18. The next judgment relied upon is 2003 (1) Allahabad Rent Cases 562 Ganpat Lal Gupta and another vs. Vth Additional District Judge, Deoria and Others wherein the apex court has held in paragraph 8 as follows: "It is settled legal proposition that amendment in the pleadings may generally be allowed and the amendment may also be allowed at a belated stage. However it should not cause injustice or prejudice to the other side. The amendment sought should be necessary for the purpose of determining the real question in controversy between the parties. However it should not cause injustice or prejudice to the other side. The amendment sought should be necessary for the purpose of determining the real question in controversy between the parties. Application for amendment may be rejected if the other party cannot be placed in the same position as if the pleadings had been originally correct but the amendment would cause him injury which could not be compensated in terms of cost or change the nature of the suit itself as it cannot be permitted to create an entirely new case by amendment. A right accrued in favour of a party by lapse of time cannot be permitted to be taken away by amendment. Amendment can also be allowed at appellate stage. Introduction of an entirely new case displacing even admission by a party is not permissible." 19. The case law referred to above as also the other cases cited lay down that an amendment application should normally be allowed, if it does not change the nature of the case, is necessary to resolve the rely controversy between the parties, is not mala fide and the amendment does not cause such prejudice to the other side which cannot be compensated by costs. 20. The conditions under which an amendment application may be allowed has been elaborately dealt with by the Supreme Court in the case of Ramesh Kumar Agarwal vs. Raj Mala Exports Private Limited & Others reported in 2012 (2) JCLR 870 (SC) the relevant paragraph is extracted below: "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: 1.whether the amendment sought is imperative for proper and effective adjudication of the case; 2.whether the application for amendment is bona fide or mala fide; 3.the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; 4.refusing amendment would in fact lead to injustice or lead to multiple litigation; 5.whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and 6.as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." 21 The same judgment further goes on to hold: "Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations." 22. Thus from the case law referred to above it emerges that an amendment seeking to incorporate subsequent events which have a material bearing on the controversy or the dispute between the parties, should normally be allowed unless the same falls within the exception clauses noted above. 23. In the above context, it would be appropriate to note the submission of the learned counsel for the respondent, whose primary contention is that the proposed amendment will change the nature of the case. In support of this contention, he has relied upon on the following judgments: AIR 1965 Supreme Court 1008 Municipal Corporation of Greater Bombay vs. Lala Pancham and Others and, AIR 1977 Supreme Court 680 M/s. Modi Spinning & Weaving Mills Company Limited and another vs. Ladha Ram & Company In paragraph 8 of this judgment it has been laid down as follows: "8. The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side." 24. The other judgments relied upon on this issue are 2009 (3) JCLR 888 (Supreme Court) and 2006 (3) JCLR 365 (Allahabad). 25. The suit at hand has been filed by a landlady through her power of attorney. The suit is for arrears of rent, damages and eviction. The amendment application filed by the tenant is to incorporate a subsequent event in the written statement. The tenant-petitioner wants to bring on record the allegation that she had met the landlady in a function and during the course of her conversation with her landlady, she was informed that the landlady had not authorized her husband to institute the suit. The specific date of the meeting is also sought to be incorporated. 26. The tenant-petitioner wants to bring on record the allegation that she had met the landlady in a function and during the course of her conversation with her landlady, she was informed that the landlady had not authorized her husband to institute the suit. The specific date of the meeting is also sought to be incorporated. 26. I am of the considered opinion, that this amendment will not change the nature of the suit which will still continue to be a suit by the landlady for eviction of her tenant on the ground of arrears of rent etc. The contention of the learned counsel for the respondent that the amendment sought will change the nature of suit and therefore the same has been rightly rejected, cannot be accepted. Thus the reason given by the revisional court that the proposed amendment sets up a new case does not appear to be sound. Also because the amendment application has been filed when the matter is ripe for final hearing cannot be a ground for rejecting the same. These are two of the reasons given be the trial court for rejecting the amendment prayed for. 27. It is clear from a bare reading of Order VI Rule 17 C.P.C. that an amendment can be allowed at any stage. It has been introduced by way of an amendment in 2002 that an application for amendment is liable to be entertained only before the commencement of the trial. The instant case was instituted, prior to the year 2002 and therefore the amendment shall not be attracted to the instant case. Under the circumstances, the amendment application could have been legally entertained, was in fact entertained and the same was also partly allowed. Since the trial court has partly allowed the amendment application, it is not open for it to reject the same in part on the ground that the conduct of the tenant was not good and that adjournments on same pretext or the other were being sought since 2011. 28. I have also carefully gone through the authorities cited by the parties before me. In none of these authorities it has been held that an amendment application is liable to be rejected, if allowing the amendment may necessitate taking of fresh evidence. 28. I have also carefully gone through the authorities cited by the parties before me. In none of these authorities it has been held that an amendment application is liable to be rejected, if allowing the amendment may necessitate taking of fresh evidence. It can therefore safely be held that the reasoning of the trial court for refusing the amendment, namely that the tenant was trying to reopen the evidence cannot be said to be a valid ground for rejecting the same. 29. Accordingly, in my considered opinion, the amendment sought by the petitioner is neither belated nor mala fide. It does not change the nature of the case and the same will not displace the plaintiff-opposite party from her admitted position in any manner whatsoever. It also does not seek to withdraw any categorical admission made by the tenant nor the same introduces a cause of action which is barred by time but merely seeks to bring on record a subsequent development. The amendment by itself cannot be held to be mala fide. The merits of the contention sought to be introduced by the amendment is not a valid consideration for allowing or rejecting the same. The judgments on the point have repeatedly held that an amendment should normally be allowed, in case the other party can be suitably compensated by costs. I have already referred to the judgments in this regard. 30 In the circumstances, therefore, this Court is of the opinion that the writ petition deserves to be allowed subject to payment of Rs. 5,000/- as costs by the petitioner to the respondent. 31 Accordingly the writ petition is allowed. The impugned order dated 6.11.2013 passed in SCC Revision No. 242 of 2013 is hereby quashed. The order of the trial court dated 20.9.2013 in so far as it rejects the amendment application 112-C is also set aside and the amendment application is allowed in toto. The trial court shall permit the petitioner to incorporate the amendments within a period of two weeks from the date of this order and subject to payment of costs of Rs. 5,000/-. In case the amendment is not incorporated within the aforesaid period and/or costs are not paid during the same period, the amendment will not be permitted to be incorporated and the case shall be decided on merits, ignoring this order. 5,000/-. In case the amendment is not incorporated within the aforesaid period and/or costs are not paid during the same period, the amendment will not be permitted to be incorporated and the case shall be decided on merits, ignoring this order. Since the matter is very old one, the trial court is directed to decide the case within a period of two months of incorporation of the amendment in the written statement or within the period of two months from the expiry of the period granted to the petitioner for incorporating the amendment and paying the costs imposed. Needless to say, the Court may not grant any unnecessary adjournment to either of the parties and may proceed to hear the case on day-to-day basis, if so required. 32. In view of the above discussion and subject to the directions aforesaid, the writ petition is allowed.