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2017 DIGILAW 33 (GAU)

Muhaeddin (MD. ) v. Prakash Tewari

2017-01-06

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Kalyan Rai Surana, J. Heard Mr. BC Das, learned counsel for the petitioner and Mr. RK Bhuyan, learned counsel appearing for the respondent. 2. By this revision under Article 227 of the Constitution of India, the petitioner has prayed for setting aside the impugned order dated 2.8.16 passed by the learned Munsiff No. 1, Kamrup (M), Guwahati in Misc (J) Case No. 52/16 arising out of T.S.No.317/15. By the said order, prayer made by the petitioner/defendant for amendment of the written statement was rejected. 3. The case projected by the petitioner is that the respondent has instituted T.S.No.317/13 before the court of learned Munsiff No.2, Kamrup, Guwahati for ejection of the petitioner from the tenanted suit premises on the ground that he was a defaulter in payment of monthly rent from the month of March, 2010 to July, 2013 amounting to Rs.52,736/- and for future rent till the petitioner was evicted from the said tenanted suit premises. 4. The petitioner contested the suit, issues were framed and during trial both the respondent as well as the petitioner examined themselves as witnesses and exhibited documents in support of their case. It was stated that while preparing for arguing at that stage, it came to the light that the petitioner had been providing his engaged counsel the money towards deposit of rent in court but his engaged counsel had misappropriated the money. When the said counsel was asked, he did not furnish the copy of deposit challan in respect of monthly rent from January, 2010 to April, 2013 and, as such, his counsel refunded the monthly rent amounting to Rs.6,400/- in the joint account of the petitioner on 28.6.13. Consequently, the petitioner has lodged a complaint against the said counsel in the Bar Council of Assam, etc. On the aforesaid circumstances, the petitioner has projected that there was no wilful default in paying rent to the respondent. As this fact was not pleaded in the written statement, the petitioner filed an application before the learned trial court under the provision of Order 6, Rule 17 CPC. On the aforesaid circumstances, the petitioner has projected that there was no wilful default in paying rent to the respondent. As this fact was not pleaded in the written statement, the petitioner filed an application before the learned trial court under the provision of Order 6, Rule 17 CPC. The proposed amendment as prayed for is as follows: "that though the defendant tendered the monthly rent for deposit in respect of suit premise for the month of January, February, March and April, 2013, the counsel did not deposit the rent in the court and on being asked for deposit challan no such deposit challan could be produced and the defendant suspectfully verified the deposit bout found no such deposit of rent in court. Finding no way the defendant demanded refund of the tendered total rent from the concerned advocate and in turn the advocate apologized for his fault and returned the amount in the joint Bank Account of the defendant and his brother as such the defendant is not wilful defaulter in respect of payment of rent as alleged." 5. The respondent contested the application filed by the petitioner for amendment of the written statement where, amongst others, the respondent took a plea that the amendment sought for in the application was very much within the knowledge of the defendant at the time of filing written statement and that the petitioner herein had failed to show that in spite of due diligence he could not raise the matter before the commencement of the trial. The learned court below after hearing the counsel representing both the parties, held as follows: "…It is stated in the written objection that the application filed by the defendant is not maintainable in law as well as in facts. The application has been filed at this belated stage without satisfying the conditions provided under Order 6, Rule 17 of the Code of Civil Procedure, 1908. The amendment sought in the para II of the application ahs no relevancy in the present case. Moreover, the amendment sought in the application was very much within the knowledge of the defendant at the time of filing the written statement. The amendment sought by the defendant is an admission of the fact that the defendant has defaulted in payment of rent. The defendant has filed this application with malafide intention to delay the enevitable. Moreover, the amendment sought in the application was very much within the knowledge of the defendant at the time of filing the written statement. The amendment sought by the defendant is an admission of the fact that the defendant has defaulted in payment of rent. The defendant has filed this application with malafide intention to delay the enevitable. Furthermore, the defendant failed to show that in spite of due diligence he could not raised the matter before commencement of trial. Under Order 6, Rule 17 of the CPC, the civil court can also allow an amendment petition for amendment of the pleading of a party at any stage of the suit or proceeding for deciding the real questions in controversy between the parties. But, after the commencement of trial, the party sough amendment of pleading is to prove due diligence. Here in the instant case, the trial already been commenced. The suit is pending at the stage of argument. Therefore, the defendant is to prove due diligence in bring in the amendment petition. In that instant case, the defendant has failed to show that in spite of due diligence he could not raise the matter before the commencement of trial. The defendant had to make enquiry himself regarding the deposit of rent in the court by his engaged counsel. The defendant tendered the monthly rent for deposit in respect of suit premise for the month of January, February, March and April, 2013 in the court but the amendment petitioner has been filed on 3.03.2016 which shows total lack of due diligence by the defendant. From 2013 to 2016, the defendant has failed to enquire regarding the deposit of rent by his engaged counsel which shows total negligence on the part of the defendant. Hence, the defendant has failed to prove due diligence. Furthermore, the amendment petition has been filed in a belated stage. Upon considering all, the amendment petition is rejected. Accordingly, Misc() case is disposed of." 6. The petitioner has argued that the petitioner being ignorant about law was a bit late in informing the counsel about the said non-deposit of rent in court by his earlier engaged counsel and, as such, the delay was not intentional and petitioner was not negligent in filing the application for amendment. Accordingly, Misc() case is disposed of." 6. The petitioner has argued that the petitioner being ignorant about law was a bit late in informing the counsel about the said non-deposit of rent in court by his earlier engaged counsel and, as such, the delay was not intentional and petitioner was not negligent in filing the application for amendment. He has further submitted that unless the proposed amendment is allowed, the right between the parties would not be conclusively determined and the petitioner would suffer prejudice. He has further argued that amendment as sought for was to enable to court to arrive at a well reasoned decision on merit. 7. Per contra, Mr. Bhuyan, learned counsel for the respondent argues that in the present case in hand, non-deposit of rent in court was for the month of January, February, March and April, 2013 but the said Title Suit No.317/13 was filed on 4.9.13 and the written statement was filed only after that therefore, only two circumstances can be presumed- one, that the petitioner was negligent in taking steps because it was the requirement of law that after the rent deposited in court, the challan was required to be submitted in the record of Misc.(J) cases and as it was a specific case that the petitioner was a defaulter, it was the requirement of the petitioner to respond to the said allegation of defaulter by submitting the relevant document in court because the rent deposit challan, inter alia, was the document on which the defence was based, which was required to be filed along with the written statement, and the other presumption is that the petitioner was fully aware that he was a defaulter and therefore there was no material available to show that he had tendered rent for the said four months in court for which there was no document available for relying upon when the written statement was filed. It is further submitted that the petitioner remained negligent when the respondent's side was examined and cross-examined as plaintiffs and also when petitioner's side was examined and cross-examined as defendants and therefore, the amendment at a belated stage was nothing but the abuse of the process of court and, as the said application was filed at the fag end of the trial, there was no infirmity in the impugned order to dismiss the prayer for amendment. 8. 8. This Court has considered the rival submission made at the bar on behalf of both the parties. Before addressing the argument, it would be relevant to quote the provisions of Order IV Rule 17 of CPC, which reads as follows: "17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: 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." 9. From the above, it is apparent that although courts should be otherwise liberal in granting prayer for amendment, if such an amendment are considered to be necessary for the purpose of determining the real question in controversy between the parties, but there is a rider to the power of the court by the proviso to the said provision. It is mandated that no application for amendment shall be allowed after the trial is commenced unless the court come to a conclusion that in spite of due diligence the parties could not raise the matter before the commencement of trial. In the present case in hand, there is no dispute that alleged non-deposit of rent by the engaged counsel for the petitioner was in respect of the months of January, February, March and April, 2013 and it was the projected case of the petitioner that his counsel had refunded the amount of Rs.6,450/- to the account of the petitioner on 28.6.13, it cannot be said that the petitioner was not aware of the fact because the said money was refunded only after the petitioner has approached his learned counsel and questioned him about the non-deposit of rent in court. 10. That being the position, the petitioner had remained totally negligent in not pleading the said fact in the written statement which was admittedly filed long time after refund of such money by the counsel. 10. That being the position, the petitioner had remained totally negligent in not pleading the said fact in the written statement which was admittedly filed long time after refund of such money by the counsel. Therefore, this is the case where this Court is constrained to hold that the application for amendment was either to fill-up the lacuna or was an abuse of the process of court as it was aimed to delay the progress of the suit. Consequently, this court holds that the petitioner was unable to show that he had shown due diligence in course of trial and he had failed to prove that in spite of due diligence, he could not raise the matter before the commencement of trial. The petitioner having led the evidence did not make any attempt to prove the fact of deposit of rent of the relevant period before the court and therefore, the only conclusion which can be drawn is that by filing the application for amendment, the petitioner is attempting to fill-up the lacuna, which cannot be countenanced by this Court. 11. Accordingly, this court does not find any infirmity in the order passed by the learned trial court and, as such, this revision petition is dismissed. 12. However, there shall be no order as to costs.