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Allahabad High Court · body

2017 DIGILAW 2798 (ALL)

Shakeel Ahemad v. Champa

2017-12-01

RAJAN ROY

body2017
JUDGMENT : 1. All these three petitions have been filed under Article 227 of the Constitution of India by tenants of the same premises of which the respondent (s) is/are the landlords. Challenge is to an order passed by the District Judge rejecting an application for amendment in the written-statement. The facts and issues being same, all the three petitions were connected and heard together. 2. The facts of the case in brief are that the respondent (s) initiated proceedings under section 21 of the U.P. Urban Buildings (Regulation of Letting and Eviction) Act 1972 (hereinafter referred as the 'Act 1972') for release of the premises in question and eviction of the tenants on account of bona fide need. 3. In response to the application the petitioners herein filed their reply in the year 2014. They with the permission of the Prescribed Authority amended their reply thrice i.e. on 16.1.2015, 6.8.2016 and 16.3.2017. Ultimately the Prescribed Authority concluded the proceedings on 6.4.2017 allowing the application under section 21(1) of the Act 1972 ordering the petitioner-tenants to vacate the premises within 2 months and to hand-over the actual possession to the respondent/landlord failing which they would be entitled to seek enforcement of the said order. Against these judgments, all of which were rendered on 6.4.2017, all the three petitioner-tenants filed appeals before the District Judge. 4. It is not out of place to mention that not only the premises in question in all the three proceedings were same, but the facts, issues, evidence, etc. were also same and the judgments are also almost verbatim similar, except for the necessary details of the tenants. At the appellate stage all the three petitioner-appellants, who were the tenants filed an application for amendment of their reply which had been filed before the Prescribed Authority. It is this application for amendment which has been rejected. 5. On a perusal of the impugned judgments the Court finds that the ground for rejection is that the facts which are the basis for the amendment being sought were existing at the time of the earlier amendments before the Prescribed Authority during the pendency of the proceedings before him and were within the knowledge of the appellants, therefore, any amendment ought to have been made at that stage. The amendment sought have already been incorporated as part of the earlier amendments made before the Prescribed Authority. The amendment sought have already been incorporated as part of the earlier amendments made before the Prescribed Authority. Some of the amendments regarding measurement of the premises in question have been found to be irrelevant. As regards amendments pertaining to the running of a school by one Smt Preeti, a family Member of the landlord it has been stated that necessary evidence in this regard can be led with requisite assertions in the arguments as such amendments in the reply was not necessary. The availability of other premises for satisfying the alleged bona fide need of the landlord had already been incorporated in the reply before the Prescribed Authority, therefore, the amendments at the appellate stage were not necessary. The boundaries of the tenanted premises have been detailed in the replication. Furthermore, evidence in respect of the necessary factual assertions could be led by the tenants in respect of the proposed amendments. 6. The contention of Sri Haq, learned counsel appearing for the petitioner was that without there being necessary pleadings no evidence would be permissible on the said issues. Moreover, he said that some of the amendments proposed at the appellate stage had not been incorporated in the earlier amendments. He especially emphasized for permitting amendments relating to running of a school by Mrs. Preeti. 7. Sri I.D. Shukla, learned counsel for the respondent on the other hand submitted that these were merely dilatory tactics at the behest of the tenants. The reply submitted by the tenants had been amended by them thrice before the Prescribed Authority. The averments regarding availability of other premises and shops for satisfying the bona fide need of the landlord and those of his family members had already been incorporated by those amendments, therefore, now, that too, at the appellate stage there was no justification for the proposed amendment. He invited the attention of the court to the proviso to Order VI Rule 17, C.P.C. to contend that the petitioner has not established due diligence in the matter, therefore, such amendment should not be allowed at such belated stage. He also informed that there were at least two other applications filed by the tenants before the appellate Court, one for additional evidence and another for further amendment in the reply which clearly goes to show that they want to prolong the proceedings with ulterior motive. 8. He also informed that there were at least two other applications filed by the tenants before the appellate Court, one for additional evidence and another for further amendment in the reply which clearly goes to show that they want to prolong the proceedings with ulterior motive. 8. On a consideration of the provisions of the Act 1972 the Court finds that the proceedings under section 21 of the said Act before the Prescribed Authority are not in the nature of a regular suit proceeding in accordance with the Code of Civil Procedure as are held by the Civil Court. What is envisaged under section 21 is an application. As per sub-section (3) of section 21 the requirement is that no order shall be made under sub-section (1) or sub-section (1-A) or sub-section (2) except after giving to the parties concerned reasonable opportunity of being heard. Thus the proceedings require a hearing of the parties. As regards the procedure to be followed, same is prescribed in section 34. The vesting of certain powers as are vested in the Civil Court when trying a suit under the C.P.C. for the purposes of such inquiry as is envisaged under section 21, by virtue of section 34 of the Act 1972, does not mean that the proceedings are in the nature of a suit. These powers have been vested on the Prescribed Authority for the purposes of ascertaining the truth and facilitating a just and proper decision in terms of the Act 1972. Sub-section (8) of section 34 provides that for the purposes of any proceedings under this Act and for purposes connected therewith the said authorities, meaning thereby the Prescribed Authority, appellate or revising authority, shall have such other powers and shall follow such procedure, principles of proof, Rules of limitation, and guiding principles as may be prescribed. Section 4, 5 and 12 of the Limitation Act have been made applicable to such proceedings vide section 35 thereof. Section 38 provides that the Act 72 shall have effect, notwithstanding anything inconsistent therewith, contained in the Transfer of Property Act 1882 and the C.P.C., thus, it has over-riding effect. 9. Section 4, 5 and 12 of the Limitation Act have been made applicable to such proceedings vide section 35 thereof. Section 38 provides that the Act 72 shall have effect, notwithstanding anything inconsistent therewith, contained in the Transfer of Property Act 1882 and the C.P.C., thus, it has over-riding effect. 9. The Rules known as the U.P. Urban Buildings (Regulation of Letting and Eviction) Rules 1972 which have been made under section 41 of the Act 1972 vide Rule 15 provide for making of an application for release under section 21(1) specifying the grounds on which the tenant is sought to be evicted. Such application or its reply are required to be signed and verified in the manner prescribed under Rule 14 and 15 of Order VI of the Ist Schedule to the Code of Civil Procedure 1908. It contemplates the filing of a reply and it being signed and verified as aforesaid. Rule 22 is a reiteration of the provisions contained in section 34 of the Act vesting the Prescribed Authority with certain powers vested in a Civil Court when trying a suit which includes the power to allow amendment of an application, memorandum of appeal or revision. It does not specifically speak of amendment of a reply, but nevertheless it is implicit in it. Rule 30 enjoins the Prescribed Authority to make a memorandum of any oral evidence admitted by him or it. 10. There is nothing in the Act 1972 or the Rules 1972 which makes all the provisions of the Code of Civil Procedure applicable to it, especially considering the nature of the proceedings which are summary and have to be completed in 2 months. This is not to say that in a given fact-situation if the ends of justice so require, principles contained therein cannot be applied for a just and proper adjudication of the dispute nor that the rival claims are not required to be established or proved, but all that is being said is that stricto sensu such provisions are not applicable except to the extent permitted. The proceedings before the Prescribed Authority are not like regular suit proceedings. The Rules themselves contemplate disposal of such proceedings within 2 months, which is indicative of the nature of the proceedings to be conducted by the Prescribed Authority. 11. The proceedings before the Prescribed Authority are not like regular suit proceedings. The Rules themselves contemplate disposal of such proceedings within 2 months, which is indicative of the nature of the proceedings to be conducted by the Prescribed Authority. 11. Against the aforesaid backdrop when this Court considers validity of the impugned order declining the amendment in the reply of the petitioner-tenants at the appellate stage, the court finds that the provisions of the C.P.C. as contained in Order VI Rule 17 to the extent applicable to written statements, would apply to the amendment of replies in these proceedings also, even though not specifically mentioned, as, there can be no justification for not permitting the same, if the same is permissible in respect of applications and appeals by Rule 22 of the Rules 1972. 12. The proviso to Order VI Rule 17 was added by means of Act 22 of 2002 so as to avoid delay in suit proceedings, as such, the proviso does not permit post-trial amendment unless it is shown that in spite of due diligence such amendments could not be proposed earlier. 13. In the present case the Court finds that at least thrice the petitioner-tenants amended their replies before the Prescribed Authority and all the facts which are sought to be inserted in their replies at the appellate stage had already happened and it is not the case of the petitioner-tenants that these are subsequent events i.e. subsequent to the conclusion of the proceedings before the Prescribed Authority or even to the last amendment before it which was allowed on 16.3.2017, therefore, the petitioner-tenants ought to have sought necessary amendments at the appropriate stage which they did not do. 14. Learned counsel for the petitioner-tenants were not able to establish due diligence on the part of the petitioner-tenants on this count, which is a necessary pre-requisite under the Order VI Rule 17. On a perusal of the earlier amendments made by the petitioner it is found that necessary averments regarding existence of other premises and shops for satisfying the bona fide need as alleged had already been incorporated by way of the earlier amendments. Considering the nature of the proceedings before the Prescribed Authority under section 21 as discussed hereinabove this Court does not find any error in the order passed by the Appellate Court. Considering the nature of the proceedings before the Prescribed Authority under section 21 as discussed hereinabove this Court does not find any error in the order passed by the Appellate Court. As the proceedings are not in the nature of regular suit proceedings and as strict rules of pleadings do not apply, there seems to be no hurdle in acting in terms of the order of the Appellate Court. Needless to say that any subsequent event can, rather should always be taken note of by the Court and for this purpose the Appellate Court has sufficient powers in this regard by virtue of section 34 of the Act 1972 read with Rule 22 of the Rules 1972, therefore, to say that the reply is necessarily required to be amended, is not acceptable. The petitioner can always file an affidavit with evidence to establish the availability of other premises to belie the bona fide need of the landlord. 15. In this view of the matter, considering the nature of the proceedings and the absence of due diligence on the part of the petitioner-tenants, the applicability of Order VI Rule 17, the reasons given by the Appellate Court, this Court does not find any valid ground for interfering with the impugned orders under Article 227 of the constitution of India. The petitions are accordingly dismissed.