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2017 DIGILAW 952 (ALL)

INDRAJEET v. SANTOSH KUMAR

2017-04-07

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the petitioners and Sri Kshitij Shailendra for the plaintiffs-respondents. 2. Considering that no useful purpose would be served by obtaining time for filing counter-affidavit, Sri Kshitij Shailendra is agreeable that the petition be decided on the basis of the material already available on record. 3. The present petition has been filed challenging orders dated 3.3.2017 and 22.3.2017 passed by Civil Judge (SD)/FTC, Farrukhabad in SCC Suit No. 26 of 1991 and District Judge, Farrukhabad in SCC Revision No. 6 of 2017 respectively. 4. SCC Suit No. 26 of 1991 was instituted by the plaintiffs-respondents against the defendants-petitioners for arrears of rent and eviction by claiming themselves as landlord/owner of the suit property. The suit proceeded and was dismissed by the trial Court against which a revision was preferred by the plaintiffs which came to be allowed by the revisional Court. The revisional Court vide its order dated 17.5.2000 remanded the matter to the trial Court. Against the order dated 17.5.2000, Writ A No. 32512 of 2000 was filed before this Court in which an interim order was passed and pursuant to the interim order, the trial Court proceeding remained under suspension. Thereafter, on 8.4.2010, Writ A No. 32512 of 2000 was dismissed and the Court observed that the trial Court shall proceed in the matter pursuant to the order of remand dated 17.5.2000. In between a development took place in a partition suit of the year 1984 in which the plaintiff-respondents were party. In the said partition suit, a preliminary decree was passed in the year 1988 and, thereafter, in the year 2008, a final decree is stated to have been passed. According to the case of the petitioners, on account of passage of final decree, the entire suit property went out of the share of the plaintiffs-respondents and therefore this became a material subsequent development which needed to be brought on record by way of amendment. Consequently, taking the aforesaid plea, the defendants filed an amendment application No. 145A-1 which came to be rejected by impugned order dated 3.3.2017 against which revision was preferred by the petitioners which came to be dismissed by impugned order dated 22.3.2017. 5. Consequently, taking the aforesaid plea, the defendants filed an amendment application No. 145A-1 which came to be rejected by impugned order dated 3.3.2017 against which revision was preferred by the petitioners which came to be dismissed by impugned order dated 22.3.2017. 5. Assailing the impugned orders dated 3.3.2017 and 22.3.2017, learned counsel for the petitioners submitted that the trial Court rejected the amendment on the ground that the amendment was highly belated and therefore the same cannot be allowed. Similar view has been taken by the revisional Court and the revisional Court observed that the final decree in the suit had been passed much earlier therefore it ought to have been brought on record much earlier and not at such a late stage. It has been submitted that the view of the Court below that there had been inordinate delay on the part of the petitioners in bringing the aforesaid amendment is not legally sustainable because the final decree was signed in the year 2008 as would be clear from the document and till 2010, the proceeding of the suit had remained stayed on account of pendency of the writ petition before this Court and in any case since the petitioners had not been a party to the partition suit, they presented the amendment application as and when the facts came to their knowledge and further since the suit in which the amendment was brought was of the year 1991 and the pleading which was sought to be amended was a pleading which was filed prior to the insertion of the proviso to Order VI Rule 17 CPC therefore the rigors of the proviso were not applicable and as such the Court below committed manifest error of law by refusing amendment which went to the root of the matter. 6. Sri Kshitij Shailendra stated that the amendment was inconsequential because the plaintiffs’ plea that they were owner/landlord of the premises had been impliedly accepted in the written statement. He has, however, not been able to dispute that the decree sought to be brought on record by way of amendment was signed/prepared in the year 2008 and he has also not been able to dispute that the proceeding of the suit had remained stayed till 2010 because of pendency of writ petition in this Court. 7. I have considered the rival submissions and have perused the record. 8. 7. I have considered the rival submissions and have perused the record. 8. As to what worth the amended plea would be, is a matter which needs to be examined by the Court and no comment need be made at this stage because it is well-settled in law that at the time of consideration of a prayer for amendment of the pleading, the merit of the plea is not to be considered, unless the plea sought to be added is ex facie frivolous or inconsequential. What is to be considered at the stage of taking a decision on the amendment application is whether the plea is required for deciding the real controversy between the parties. Once a case is set up by the defendants that on account of a partition decree, the share of the plaintiff in the suit property has been extinguished it becomes a relevant consideration, inasmuch as in D. Satyanarayan v. P. Jagdish, (1987)4 SCC 424 , the Apex Court had held that a plea by the tenant that since the date of tenancy, the title of the landlord came to an end, or that he was evicted by a paramount title holder cannot be said to be hit by Section 116 of Evidence Act. Such an amendment therefore cannot be denied only on the ground that it has been brought on record with some delay, particularly, when it was demonstrated that the delay was not deliberate in the facts of the case as could be noticed from the submissions of learned counsel for the petitioners. More over, the pleading in which amendment was sought was filed much before the insertion of the proviso to Order VI Rule 17 CPC therefore the rigors of the proviso would not be applicable to the amendment application filed by the defendants. Otherwise also, since the defendants had not been party in the partition suit and the decree had been signed and prepared in the year 2008, the amendment sought in the written statement ought to have been allowed and not rejected on ground of delay, keeping in mind that the suit proceeding had remained stayed because of Writ A No. 32512 of 2000. 9. Ordinarily, this Court would have set aside the order passed by the Court below and remanded the matter to the Court below but that would unnecessarily delay the proceeding. 9. Ordinarily, this Court would have set aside the order passed by the Court below and remanded the matter to the Court below but that would unnecessarily delay the proceeding. This Court therefore considers it appropriate to allow the amendment application No. 145A-1. 10. The petition is accordingly allowed. The orders dated 22.3.2017 and 3.3.2017 passed by the Courts below are hereby set aside. The amendment application No. 145A-1 dated 4.8.2016 (annexure 12 to the petition) stands allowed. The petitioners shall incorporate the necessary amendments within two months from today. Thereafter the Court shall proceed to decide the suit expeditiously in accordance with law, preferably, within a period of three months from the date of filing of certified copy of this order. It is made clear that the defendants shall not be allowed to lead evidence other than the evidence which is required for proving the amended plea. No order as to costs.