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2015 DIGILAW 31 (ALL)

Babloo v. IIIrd A. D. J. Faizabad

2015-01-08

MAHENDRA DAYAL

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JUDGMENT Mahendra Dayal,J. The tenant-petitioner being aggrieved by the order dated 13.01.2000 passed by the Judge Small Causes Court, Faizabad and the judgment and order dated 31.08.2002 passed by the 3rd Additional District Judge, Faizabad, has preferred this instant writ petition. 2. The opposite parties no.3 and 4 filed a SCC Suit No.32 of 1997 against the petitioner for ejectment and recovery of arrears of rent in which the petitioner-defendant after filing of the written statement moved an application for amendment in written statement which was rejected by the Judge Small Causes Court and on revision, the learned Revisional Court also dismissed the revision. 3. Learned counsel for the petitioner submits that the opposite parties no.1 and 2 filed the suit in which it was stated that the opposite party no.3 was the owner of the property in dispute and the opposite party no.3 being trust was exempted from the purview of the U.P. Act No.13, 1972. The petitioner-defendant contested the suit by filing the written statement and set up a case that the trust-deed was a void document and the trust was not the owner of the disputed property. It was stated in the written statement that the owner of the disputed property was Late Lala Raj Kishore and after his death, his nephew Anil Kumar Agarwal became owner of the property and as such the Rent Control Act was applicable to the building. The petitioner-defendant by means of amendment application prayed that in Para-17 of the written statement, the ward 'Dharamshala' be deleted and in its place, residential house be substituted. Similarly, in second line, the word 'Dharamshala' be deleted and the word 'Kothi, be substituted. Apart from this, certain other amendments were sought in the written statement. The learned Judge Small Cause Court by means of the order dated 13.01.2000 partly allowed the amendment application, but refused the amendment sought in para-17 of the written statement on the ground that by means of proposed amendment, the petitioner-defendant wanted to withdraw the admission already made by him. Moreover, the amendment has been sought after a long gap and if the amendment is allowed, it would change the nature of defence. The petitioner-defendant preferred an SCC Revision No.43/2000 which too was dismissed by 3rd Additional District Judge, Faizabad. 4. Moreover, the amendment has been sought after a long gap and if the amendment is allowed, it would change the nature of defence. The petitioner-defendant preferred an SCC Revision No.43/2000 which too was dismissed by 3rd Additional District Judge, Faizabad. 4. I have heard Sri Q.M.Haq, learned counsel for the petitioner and Sri Ajai Pandey, learned counsel for the opposite parties no.3 and 4. 5. Learned counsel for the petitioner has submitted that the law relating to the amendment of pleading has been enumerated in Order VI Rule 17 C.P.C. The guidelines relating to the amendment of pleading in respect of the plaint and written statement are different. The plaintiff can not change the nature of the suit by means of amendment in the plaint, but the defendant is permitted to take alternative pleas and even plead inconsistent pleading and as such the scope of amendment of written statement is much wider than the scope of amendment of the plaint. The petitioner-defendant by means of the amendment wants to explain the pleading already made by him in more exhaustive manner and is not going to change nature of defence. The courts below have refused the amendment only on the ground that the petitioner-defendant wanted to withdraw his admission already made in the written statement. The approach, thus, adopted by both the courts below is erroneous. 6. In support of his argument, he has relied upon a decision reported in 2010 (28) LCD page 532 Dharam Chand Pandey Vs. District Judge, Faizabad and others. In this case, it has been held that clarification and explanation of the pleading already made, can be done in the written statement. In this case, a Co-ordinate Bench of this Court has relied upon a decision of Hon'ble Supreme Court reported in AIR 2007 Supreme Court 1663 in which the Hon'ble Supreme Court has held that the court should be more liberal in allowing amendment in the written statement, than that of a plaint, as the question of prejudice would be much less in the former than in the latter and addition of a new ground or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed. 7. Reliance has also been placed on a judgment reported in 1997 (3) AWC 1490 , Som Prakash Rastogi Vs. 7. Reliance has also been placed on a judgment reported in 1997 (3) AWC 1490 , Som Prakash Rastogi Vs. VIth A.D.J. Muradabad and others, in which a Co-ordinate Bench of this Court has held that even an admission made by a party may be withdrawn by way of amendment. 8. Learned counsel appearing on behalf of opposite parties no.3 and 4 has submitted that it has been a specific case of the plaintiff-respondent that the building belongs to 'Dharamshala' which is a trust and as such the property in question was exempted from the purview of the U.P.Act No.13, 1972. This fact was admitted by the defendant-petitioner in his written statement and now by way of amendment, the petitioner-defendant wants to withdraw this admission and take a plea that the property in question does not belong to the trust and the Rent Control Act was applicable to the building. He has further submitted that since the proposed amendment amounts to withdrawal of admission and has been moved after a gap of two years of filing the written statement, the amendment if allowed would certainly prejudice the case of the plaintiff-respondent. He has also relied upon a Hon'ble Supreme Court decision reported in 1998 ALR page 442, in which it has been held by the Hon'ble Supreme Court that an amendment moved after the expiry of 18 months amounting to withdrawal of admission, the same should not be allowed. He has further argued that under the provisions of Order VI Rule 17 C.P.C. the amendment in pleading can only be allowed when the court is satisfied that the facts sought to be incorporated in the pleadings were not in the knowledge of the party seeking amendment prior to it. In the instant case, the petitioner-defendant had every knowledge of the fact that the 'Dharamshala' was the owner and landlord of the premises in question and after having admitted the same in the written statement, the petitioner-defendant has sought amendment in the written statement after a gap of two years. In these circumstances, it can not be said that the amendment was sought when it came to the knowledge of the defendant-petitioner that the property in dispute was not a trust. In these circumstances, both the courts below have rightly refused to allow such amendment. 9. In these circumstances, it can not be said that the amendment was sought when it came to the knowledge of the defendant-petitioner that the property in dispute was not a trust. In these circumstances, both the courts below have rightly refused to allow such amendment. 9. After hearing the learned counsel for the parties and having perused the written statement as well as amendment sought by the petitioner-defendant, I am also of the view that the admission made by the petitioner-defendant in his written statement, is such an admission which has given a valuable right to the plaintiff-respondent and the petitioner-defendant wants to withdraw this admission by means of amendment which is not permissible under the law. Thus, both the courts below have rightly refused the amendment sought in para-17 of the written statement. 10. In view of the above, I do not find any illegality and infirmity in the order and judgment impugned in this writ petition. Hence, the writ petition has no force and is accordingly dismissed. Interim order dated 12.09.2002 stands discharged.