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2015 DIGILAW 465 (ALL)

Yakoob @ Mohd. Yakoob v. Sarfaraj Khan

2015-03-11

ABHINAVA UPADHYA

body2015
JUDGMENT Abhinava Upadhya,J. Heard Sri Utpal Chatterji, learned counsel for the revisionist and Sri Ashish Kumar Singh, learned counsel appearing for the respondent. 2. This revision has been filed against the order of the Judge Small Causes dated 20.01.2015 in S.C.C. Suit No. 09 of 2011. The aforesaid suit has been filed by the respondent-landlord for arrears of rent and ejectment of the applicant from the premises in question. 3. Written statement was filed on 01.08.2011 controverting the plaint allegation of title over the premises. In paragraph 12 of the written statement, a clear stand has been taken that the plaintiff is not the owner of the property and, therefore, the suit is not maintainable. It has further been stated that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is not applicable. 4. After filing of the plaint, the written statement and also examination in chief of the plaintiff at such stage an amendment application has been moved by the defendant for bringing on record the grounds with respect to the dispute of title over the premises in question and legal points was also sought to be taken that the Court has no jurisdiction to decide the question of title as is barred by Section 23 of the Provincial Small Cause Courts Act, 1887. 5. Sri Utral Chatterji, Advocate has strenuously argued that the amendment at any stage is permissible. Even legal grounds can be taken through an amendment, which is allowable and necessary for decision on the intrinsic question of tenancy. The trial court by the order impugned has rejected the application filed under Order VI Rule 17 of the Code of Civil Procedure and held that the amendment is being sought only to delay the proceedings as in the written statement the specific ground has already been taken questioning the title of the landlord over the premises in question. It has also been recited in the order that the defendant has not disputed his tenancy, but the only questions the title of the landlord who has instituted the suit and therefore, all that is to be seen is existence of relationship of the landlord and tenant over the premises in question which apparently exists. 6. Sri Chatterji has relied upon a decision of the Hon'ble Supreme Court in the case of Usha Balashaheb Swami and others Vs. 6. Sri Chatterji has relied upon a decision of the Hon'ble Supreme Court in the case of Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others reported in 2007 (3)AWC 2728 (SC). In the aforesaid decision, it has been held that the Courts ought to? be more liberal in allowing the amendment application in the written statement than that of the plaint, as the question of prejudice would be far less in the former than in the latter case. There is no dispute with the proposition laid down by the Court in the aforesaid case, however, it necessarily has to be seen, whether the amendment is necessary for proper decision in the suit with regard to the determination of rights of the parties. The amendment should not be allowed on motivated factors just to delay the proceedings. In the present case what has been sought by amendment, has already been stated in the written statement, therefore, the amendment is repetitive in the nature, as such the aforesaid judgment has no application. 7. Sri Chatterji has further relied upon a decision of Hon'ble the Supreme Court in the case of Baldev Singh and others Vs. Manohar Singh and another reported in 2006(6) SCC 498 . In this case similar proposition has been laid down as in the case of Usha Balashaheb Swami (supra). In the aforesaid decision, the Court has taken exception to the general principle that once trial has commenced, amendment application could not be allowed as it is held that the proposed amendment, if allowed, would not have irretrievable prejudice. The principle which ought to be followed especially when refusing the prayer for amendment is only to see that the delay in disposal of suit is avoided. Again there is no dispute with the proposition laid down by the Supreme Court as upon mere technicalities the purpose of justice should not fail and therefore, if any plea which ought to have been taken by the defendant, which was material for their defence for some reason and after due diligence could not be taken at the appropriate stage, could be taken at the later stage. But in the present case, the pleadings for defence had already been taken in the written statement i.e. with regard to the question of title of the landlord without disputing the factum of his tenancy, therefore, it was not relevant to be added again by way of amendment. 8. Sri Chatterji has further relied upon a decision of Hon'ble the Supreme Court in the case of Sampath Kumar Vs. Ayyakannu and another reported in AIR 2002 SC 3369 to press the point that some delay in filing the amendment application could not be detrimental to the cause of justice. In the present case, the question is not of delay in filing the application but the motive behind the application is to delay proceedings as such the aforesaid judgement is not applicable in the present case. 9. Sri Chatterji has also relied upon the decision of the Apex Court in the case of M/s. Paragon Rubber Industries Vs. M/s. Pragati Rubber Mills and others reported in 2014 (102) ALR 235 (SC). The aforesaid decision was rendered in proceedings arising out of Trade and Merchandise Marks Act, 1958, wherein it was held that amendment can be allowed even if according to the original pleadings the suit was not maintainable, can be pleaded to be maintainable by an amendment. The aforesaid proposition has no relevance in the present dispute. Similarly in two decisions of this Court in the cases of Jawahar Singh Vs. Vedpal Singh reported in 2012 (92) AlR 805 and Murari Lal Vs. Vth A.D.J., Bulandshahr and others reported in 2005 (2) AWC 1146 , it has been held that the delay in filing the amendment could not be the only reason for rejecting the same and also legal pleadings can be made through amendment. 10. In the present case as has been stated above, that it is not the question of filing amendment application with delay but the motive behind the filing of the amendment is only to delay the proceedings. Legal pleadings repeatedly also cannot be allowed by amendment. It is not the case that the revisionist can not raise a legal plea but such pleadings have already been taken in the written statement and only repeating it by way of amendment is to be discouraged. 11. Similarly, Sri Chatterji has further relied upon a decision of the Apex Court in the case of Ramesh Kumar Agarwal Vs. It is not the case that the revisionist can not raise a legal plea but such pleadings have already been taken in the written statement and only repeating it by way of amendment is to be discouraged. 11. Similarly, Sri Chatterji has further relied upon a decision of the Apex Court in the case of Ramesh Kumar Agarwal Vs. Rajmala Exports Private Limited and others reported in 2012 (5) SCC 337 to press upon this Court the proposition that the court ought to be very liberal in allowing the amendment in written statement as against allowing the amendment in the plaint. 12. I have considered the submission of learned counsel for the revisionist and Sri Ashish Kumar Singh, learned counsel for the respondent. In my view the pleadings that has been sought to be incorporated by way of amendment in the written statement have already pleaded in the written statement the repetition of which is not really necessary for deciding the issue. The revisionist has raised the question of title although he does not dispute his own tenancy. If he proves that the land lord has no title, the suit itself would fail after trial, but that stage has not yet reached, although pleadings to that effect, the revisionist can always press during the trial also. It is noteworthy that so far as the amendment are concerned, it has been consistent view that the court ought to be liberal in allowing the amendment inspite of proviso to Rule 17 of Order 6 of the Code of Civil Procedure if it appears that it furthers the cause of justice, which is not the case in this dispute. 13. Sri Chatterji has further relied upon a decision of the Apex Court in the case of Chairman, School of Buddhist Philosophy, Leh, Ladakh (J&K) Vs. Makhan Lal Mattoo and another reported in 1990 (4) SCC 6 , wherein it has been held that un-controverted affidavit should be taken to be correct. He submits that in the present case, there is no affidavit controverting the pleadings made in the amendment application and therefore, it should be treated un-controverted to be allowed. 14. I am unable to to accept the aforesaid contention as the amendment as has been held is not matter of right. But the court must not refuse a bonafide amendment, which is legitimate and necessary for deciding the issue in question. 14. I am unable to to accept the aforesaid contention as the amendment as has been held is not matter of right. But the court must not refuse a bonafide amendment, which is legitimate and necessary for deciding the issue in question. At the same time the court must never permit malafide dishonest amendment or the amendment being used as a tool to deny the due right of one party as against the other in the proceedings. 15. Considering the facts and circumstances of the case, in my view the amendment sought was apparently for the only reason to delay the proceedings as no right of the defendant will be affected if the amendment is refused. In the present case what has been stated to be brought on record through amendment is already on record. Therefore, the amendment has rightly been rejected. 16. There is no merit in the revision. It is accordingly dismissed.