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2014 DIGILAW 3582 (ALL)

Munna Sekh v. Afsana Begum

2014-12-02

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh, J. Heard Sri K.K.Nirkhi, learned counsel for the petitioner. 2. By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 23.9.2014 passed by the Additional District Judge Vth Kanpur nagar in Rent Appeal No. 64 of 2011 by which the petitioner's application no.47-Ga has been rejected. 3. While assailing the impugned order, learned counsel for the petitioner submits that the learned court below has erred in rejecting the petitioner's amendment application by which he has sought amendment in the written statement adding paragraph 10-A and 10-B with respect to purchase of the house in dispute from the owner as well as co-owner. 4. The facts giving rise to this case are that the respondent has filed an application under Section 21 (1) (a) of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short 'the Act') seeking release of the shop in dispute before the prescribed authority, Kanpur Nagar. This case was numbered as Rent Case No. 56/2009 (Smt. Afsana Begum Vs. Munna) The petitioner, herein, has filed objection/written statement in December, 2010. Thereafter the release application was considered and ultimately allowed by the learned prescribed authority on 20.4.2011. Aggrieved by the aforesaid judgment, the petitioner, herein, has filed Rent Appeal No. 64 of 2011 before the Additional District Judge, Court No. 6, Kanpur Nagar. In the appeal, the petitioner has filed an amendment application praying the court to permit him to add paragraphs 10A and 10B in the written statement by which the petitioner has tried to state that the major portion of the house has already been purchased by the petitioner from the owner as well as co-owner of the house in dispute. To this amendment application, an objection was filed by the otherside stating therein that the sale-deed has already been brought on record through affidavit as evidence and for that, amendment in the pleadings is not necessary. The appellate court has rejected the petitioner's application taking note of the fact that the material which the petitioner wants to bring on record by way of amendment in the pleadings is already on the record, therefore the amendment in the pleadings is not necessary. 5. The appellate court has rejected the petitioner's application taking note of the fact that the material which the petitioner wants to bring on record by way of amendment in the pleadings is already on the record, therefore the amendment in the pleadings is not necessary. 5. Sri Nirkhi, learned counsel for the petitioner has submitted that the amendment was necessary for deciding the real controversy, therefore the appellate court has erred in rejecting the same. In support of his submissions, he has placed reliance upon the judgment of this Court in State of U.P. and others Vs.Ashok Kumar and others 2014 (8) ADJ 251 . 6. Suffice it to say that the principle laid down in the aforesaid case cannot be disputed provided the amendment sought is necessary for deciding real controversy and that material is not already on the record. It is observed by learned Judge that the sale-deed which has been sought to be brought by way of amendment has already been filed by the petitioner before the appellate court and that is available on the record, therefore the facts involved in the present case are distinguishable from the facts involved in State of U.P. and others (supra). Here the appeal has arisen from the judgment rendered in a case decided under Section 21 (1) (a) of the Act. It is well settled that the proceeding under Section 21 (1) (a) is decided only on the basis of affidavits and all the procedures contained in the C.P.C. are not applicable. Otherwise also, I have seen the impugned order as well as the amendment application brought by the petitioner on the record of the writ petition. From the perusal of which, it transpires that there is no whisper with regard to the satisfaction to the proviso of Order VI, Rule 17 of C.P.C. according to which the applicant seeking amendment in the pleadings at the belated stage that too at the appellate stage has to show that inspite of due diligence, the fact sought to be amended could not be raised earlier. Here, apparently there is lack of due diligence as the release application was filed in the year 2009, written statement was filed in the year 2010 and the petitioner's case is that he has purchased the house from the owner as well as co-owner and this fact was existing since beginning of the proceeding and that has not been raised and the reason for the same has not been recorded. 7. In view of foregoing discussions, I do not find any good ground to interfere with the impugned order. The writ petition lacks merit and it is hereby dismissed.