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2016 DIGILAW 339 (ALL)

Om Hari Agarwal v. Sarojni Agarwal

2016-01-25

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard Sri Siddhartha Verma, learned counsel for the petitioners. 2. These two writ petitions have been directed against the common order dated 28.08.2012 passed by the District Judge, Bareilly, rejecting the two applications of the petitioners (paper No. 24-C and 33-A) in Civil Appeal No. 32 of 2012, Om Hari Agarwal & others v. Smt. Sarojani Agarwal & others, for the amendment of the written statement and for adducing additional evidence at the appellate stage. 3. Briefly stated a suit for arrears of rent and ejectment and for damages and mesne profits was filed by the plaintiff-respondents in the year 1980. It was registered as original suit in the year 1992 and on the basis of pleadings of the parties, issues were formulated. Thereafter, the suit was decided on 31.01.2012. 4. This judgement and decree of the court of first instant was challenged by the petitioners by means of filing a civil appeal whereupon the above two applications for amendment of Written Statement and adducing additional evidence come to be filed. 5. The petitioners in filing the above applications contended that while going through the old papers of their late father they have come across certain papers which shows that the annual rent of the premises in dispute was Rs. 500/- and that rent up to 1984-85 was paid to the plaintiff-respondents. Therefore, amendment in the written statement to plead the above facts and to adduce additional evidence necessary to bring on record. 6. A bare perusal of the plaint of the above suit reveals that in paragraph 2 and 3 it was specifically pleaded that the rent of the premises in dispute was Rs. 2,500/- per annum which was subsequently increased to Rs. 3,000/- per annum, vide rent deed executed on 26.11.1971. The petitioners have not paid any rent except Rs. 550/- which was paid at the time of execution of lease. 7. In reply to the averments made in paragraph 2 and 3 of the plaint, the petitioners only stated that the plaint fails to disclose the correct facts and that the additional plea would contain the specific reply. In the additional plea, it has been stated that the rent deed was insufficiently stamped and hence inadmissible in evidence. Any suit for arrears and for ejectment on the basis of such insufficient document, is liable to be dismissed. In the additional plea, it has been stated that the rent deed was insufficiently stamped and hence inadmissible in evidence. Any suit for arrears and for ejectment on the basis of such insufficient document, is liable to be dismissed. In paragraph 8 and 13 of the Written Statement it was stated that the rate of the rent as alleged by the plaintiff-respondents is incorrect and that no amount of rent can be claimed from them. 8. The above pleadings clearly demonstrate that the petitioners have not specifically disputed the rate of rent as alleged by the plaintiff-respondents and the amount of rent due and payable. It is for this reason alone, the court of first instance while framing the issues had not formulated any issue on the rate of rent and the amount of rent due and payable. 9. The petitioners for the first time after more than 16 years of the pendency of the suit have applied for amendment the written statement as to dispute the rate of rent and the amount of rent due and payable. 10. The only plea taken in this regard is that after the death of their father, who was the original defendant while going through certain documents they have come across few papers which revealed that the rate of rent agreed was Rs. 550/- and that rent up to 1984-85 was paid. 11. It may be relevant to note at this juncture that the written statement was filed by the father of the petitioners i.e. the original defendant. The petitioners as the successors may not be having knowledge of the above facts but the father the original tenant must be having its full knowledge. Therefore, when he himself has failed to plead about those facts the petitioners cannot be permitted to the improve the pleadings. There is no explanation as to why he could not plead about those facts. 12. This clearly shows that the amendment sought in the written statement is an after thought with oblique motive. 13. In view of the aforesaid facts and circumstances, it cannot be said that the petitioners despite exercise of due diligence was not having knowledge of the above facts, or that the original defendant also had no knowledge of the same so as to plea effectively in that regard. 14. 13. In view of the aforesaid facts and circumstances, it cannot be said that the petitioners despite exercise of due diligence was not having knowledge of the above facts, or that the original defendant also had no knowledge of the same so as to plea effectively in that regard. 14. Accordingly, the appellate court below on the analysis of Order 6 Rule XVII of the Code of Civil Procedure has rightly held that it is not a fit case for permitting any amendment in the written statement after a lapse of more than 16 years even if, most liberal approach is taken in the matter. 15. The submission of Sri Siddharth Verma, learned counsel for the petitioners is that even if, allowing of amendment application result in de-novo trial, the court should not shy of in allowing the same as the court is to do justice and allowing of such amendment was not likely be caused any injustice to other side. 16. The argument is without substance for the simple reasons that it is not the question of de-novo trial, but of substituting the pleadings changing the entire nature of defence. Such a change if allowed would result in withdrawing the rights which may have accrued to the other side on issues on which there were no pleadings. 17. The original pleadings would reveal that the petitioners have not disputed the rate of rent and the amount of rent due and payable. Now by the amendment, the nature of the above pleadings would stand totally altered given rise to new issues regarding to the rate of rent and the amount of rent due payable. The petitioners, cannot be permitted to alter the situation after the trial had gone against them, more particularity when they could not establish any reason as to why the original defendant could not bring on record pleadings to the above effect and the evidence in support thereof. 18. The application for additional evidence filed under Order 41, Rule 27 CPC is only to substantiate and prove the facts sought to be pleaded by amended. Therefore, when there is no error in denying the amendment to the pleadings, the petitioners cannot be permitted to adduce additional evidence in respect thereof, as it is well settled that the evidence could not travel beyond the pleadings. 19. Therefore, when there is no error in denying the amendment to the pleadings, the petitioners cannot be permitted to adduce additional evidence in respect thereof, as it is well settled that the evidence could not travel beyond the pleadings. 19. In view of the above facts and circumstances, I find no merit in these petitions and the same are dismissed with direction to the appellate court below to proceed and decide the appeal, if not already decided, expeditiously, preferably within a period of six months from the date of production of certified copy of this order. Petition dismissed.