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2016 DIGILAW 1149 (ALL)

Yogendra Swaroop Saxena v. Reena Agrawal

2016-03-31

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta,J. The revisionist is defendant in SCC Suit No.80 of 2014 instituted by the plaintiff-opposite parties for recovery of arrears of rent and for ejectment. The suit is founded on the plea that the demised premises is a new construction and rent is above Rs.2000 per month, consequently, provisions of U.P. Act No.13 of 1972 are not applicable to it. A written statement was filed by the defendant-applicant, in which it is admitted that rent of the demised premises is above Rs.2000 per month and there is no specific denial to the fact that provisions of U.P. Act No.13 of 1972 are not applicable to it. The plaintiff-opposite party has already led his evidence and thereafter, since 8.9.2015 several dates had been fixed permitting the defendant-revisionist to lead evidence. On 8.9.2015 he sought adjournment and whereupon, 29.9.2015 was fixed. Thereafter, 24.11.2015 was fixed, on which date the defendant remained absent and consequently, his evidence was closed. On 8.12.2015 he filed an adjournment application, whereupon 4.1.2016 was fixed. He again filed adjournment application on 4.1.2016 and thereafter filed an application seeking amendment in the written statement on 12.1.2016, which now stands rejected by the impugned order dated 25.2.2016. By means of amendment, the revisionist seeks to contend that the plaintiff-opposite party and her husband had purchased the disputed property by registered sale deed dated 28.5.1971 and the construction is of the period prior to 1986 and thus the demised premises is an old one. It is further claimed that a notice was issued by Nagar Nigam Allahabad to the plaintiff-opposite party and that a rent agreement dated 2.12.1985 was entered between the husband of the plaintiff-opposite party and one Subhash Chandra Kesri. In the amendment application it is claimed that these documents came to the notice of the applicant at the time of preparation of the case and in order to bring these documents on record, it has become necessary to seek amendment in the written statement. 2. The trial court has rejected the amendment application by holding that the amendment sought is barred by the proviso to Order 6 Rule 17 as substituted by U.P. Act No.22 of 2002 w.e.f. 1.7.2002. 2. The trial court has rejected the amendment application by holding that the amendment sought is barred by the proviso to Order 6 Rule 17 as substituted by U.P. Act No.22 of 2002 w.e.f. 1.7.2002. It has further been held that evidence of the defendant-applicant was closed long back and in case the amendment is allowed at this stage, it will result in reopening the trial and thus, it has been found that the amendment sought is malafide. 3. Learned counsel for the applicant submitted that the amendment in a written statement is to be allowed most liberally and mere fact that there is delay in seeking amendment it cannot be a ground to reject the amendment application. In this regard, reliance has been placed on Sushil Kumar Jain Vs. Manoj Kumar and another1 and Surender Kumar Sharma Vs. Makhan Singh2. 4. By U.P. Act No.22 of 2002 Order 6, Rule 17 was substituted and the following proviso was inserted: - "Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 5. In the amendment application which the applicant has filed, there is no pleading that in spite of due diligence, he was not in a position to raise the plea before the commencement of the trial. All that has been said in the application is that at the time of preparation of the case "defendant/tenant came across certain documents which are liable to be presented in the case and are essential to be brought on record". Concededly, the plaintiff had completed his evidence and thereafter, since 8.9.2015 various dates were fixed permitting the defendant-revisionist to lead evidence. However, when despite several adjournments no evidence was led nor the defendant was present on the date fixed for his evidence, the trial court was compelled to close his evidence. Filing of the amendment application thereafter on 12.1.2016 was thus, on the face of it, malafide. However, when despite several adjournments no evidence was led nor the defendant was present on the date fixed for his evidence, the trial court was compelled to close his evidence. Filing of the amendment application thereafter on 12.1.2016 was thus, on the face of it, malafide. Further, this Court is of the firm opinion that the application having been filed after the commencement of the trial but without there being any explanation as to why such plea could not be raised before commencement of the trial, consequently, the trial court was justified in rejecting the amendment application having regard to the proviso inserted by U.P. Act No.22 of 2002. 6. In the case of Sushil Kumar Jain (supra) the Supreme Court was considering a plea relating to an amendment sought in the written statement even before the issues were framed. It is in that context that the Supreme Court held that the proviso inserted to Order 6 Rule 17 has to be understood in a limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. It was found as a matter of fact that issues had not been framed nor documents were filed by the parties by the time the amendment was sought and thus the trial had not begun. Consequently, the Supreme Court permitted the amendment to be made in the written statement. In this regard, para 20 of the aforesaid judgment, which is relevant, is reproduced below: - "In view of the aforesaid decision and in view of the admitted fact that not even the issues have yet been framed, documents have not yet been filed, evidence has not yet been adduced, we are of the view that the proviso to Order 6 Rule 17 of the CPC has no manner of application as the trial has not yet commenced." 7. In Surender Kumar Sharma (supra) the Supreme Court though has held that even an amendment filed belatedly could be allowed, as the Court has unfettered discretion to allow amendment in the pleadings, but it is amply clear therefrom that therein, the proviso inserted to Order 6 Rule 17 by U.P. Act No.22 of 2002 was not subject matter of consideration. 8. In view of the above, the decisions cited by learned counsel for the revisionist are of no help to the applicant. 8. In view of the above, the decisions cited by learned counsel for the revisionist are of no help to the applicant. The revision lacks merit and is dismissed.