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2018 DIGILAW 1935 (HP)

Liaquat Ali Khan v. Piyare Lal Sud

2018-11-05

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The tenant is the petitioner, who, aggrieved by the order dated 17.11.2017 passed by the learned Rent Controller, Court No.l, Shimla, whereby his application under Order 6 Rule 17 CPC for amendment of reply came to be dismissed, has filed the instant petition. 2. Respondent No. 1/landlord, has filed a petition under Section 14 of the H.P. Urban Rent Control Act, 1987 (for shot, the Act) against the petitioner and respondents No.2 and 3 on the ground of arrears of rent, subletting as well as rebuilding and reconstruction of the building in question and the same is pending adjudication before the learned Rent Controller for nearly one decade having been instituted on 18.11.2008. 3. It was during the course of recording of evidence of the respondents that the petitioner filed an application for amendment of the reply on the ground that Thara measuring 2x2 feet is not part of the building No.98 and is independent in the form of Almirah type structure between municipal stairs and building No.98 and in case landlord/respondent No.l wants to reconstruct the building, demised premises are not required to be vacated. The petitioner further averred that during the course of evidence led by respondent No.l, it has come on record that respondent No. 1 is not the owner of Teh Zamin, which is in the ownership of State of Himachal Pradesh and for that reason, the plan submitted by respondent No.l was rejected. It was further averred that since he was paying Teh Bazari to the Municipal Corporation Shimla for the last twenty five many years, therefore, the Municipal Corporation, Shimla was necessary party. On these allegations, the petitioner sought to raise preliminary objection No.5 and lines at the end of para 20 of the reply, which read thus:- That the petitioner has failed to array Municipal Corporation, Shimla as a party in the case and even the State of Himachal Pradesh has not been arrayed as a party in the lis, in whose absence no effective order can be passed. This said entities are necessary parties in the case in whose absence no orders can be passed in view of the fact that portion of demised premises measuring 1 x 1.5 metres is in possession of respondent No. 3 between municipal stairs and building No. 98, qua which the respondents had been paying teh-bazari to Municipal Corporation, Shimla since last more than twenty five years. The eviction has been sought with respect to Thara measuring 2x2 feet, however, the same is situated between municipal stairs and building No. 98, which has been extended by the respondents to the extent of 1x1.5 metres on the municipal land and qua the same Teh-Bazari is being paid by the respondents. There can be no partial eviction of the demised premises neither any NOC has been taken by the petitioner from the Municipal Corporation, Shimla. That petition is also liable to be dismissed, in view of the fact that ownership of a portion of premises in occupation of the respondents measuring 1 x 1.5 metres, is in the name of State of Himachal Pradesh and Municipal Corporation, Shimla is shown to be in possession of the same, qua which the respondents are paying Teh-Bazari to Municipal Corporation, Shimla for last more than twenty five years and the demised premises is also situated in the said portion of the land. The petitioner has no right of any kind upon the same. There can be no partial eviction from the demised premises, in view of the fact that Thara measuring 2x2 feet has been extended to the extend of 1 xl.5 metres upon municipal land and qua the same, the respondents had been paying Teh-Bazari to Municipal Corporation, Shimla receipts whereof are annexed along with the reply, which may kindly be read as part and parcel of said reply. Further, the petitioner has also encroached upon the Municipal Corporation land and the staircase has also been constructed upon Municipal Corporation land. The Thara is situated between Municipal Corporation stairs and building No. 98, which requires no reconstruction and even if the building No. 98 is required to be reconstructed in any manner, there is no need to dismantle the shop measuring 2x2 feet extended to the extent of 1 x 1.5 meters by the respondents. The Thara is situated between Municipal Corporation stairs and building No. 98, which requires no reconstruction and even if the building No. 98 is required to be reconstructed in any manner, there is no need to dismantle the shop measuring 2x2 feet extended to the extent of 1 x 1.5 meters by the respondents. The petitioner has not only failed to disclose the said facts before this Honble Court, but has also failed to disclose that there can be no partial eviction from the demised premises and neither there is any NOC issued by the Municipal Corporation, Shimla nor the State of H.P. 4. The respondent No. 1/landlord contested the application by filing reply, wherein he averred that he had already purchased the land beneath the building along with adjoining private stair case comprised in Khasra No. 612/1, Lower Bazar, Shimla, from the State Government as is evident from the copy of free hold sale deed and jamabandi filed with the reply. It was further averred that the application had been filed simply with a view to delay outcome of the eviction petition as the petitioner along with respondents No. 2 and 3 in the eviction petition had already admitted their possession over the rented accommodation under landlord and his predecessor and, therefore, this application was nothing, but gross misuse of process of Court. 5. As observed above, the application filed by the petitioner came to be dismissed constraining him to file the instant revision petition. 6. It is vehemently contended by Mr. G.C. Gupta, Senior Advocate, assisted by Ms. Meera Devi, Advocate, that the findings recorded by the learned Rent Controller are perverse and, therefore, deserve to be set aside, whereas, on the other hand, Mr. Ashok Sood, Advocate, would defend the impugned order on the ground that the same has been passed in accordance with law and warrants no interference. 7. I have heard the learned counsel for the parties and have also gone through the records of the case. 8. As observed earlier, the eviction petition is pending adjudication before the learned Rent Controller for nearly one decade, therefore, it is unbelievable that the petitioner, despite due diligence, was not aware of all the facts that has now been sought to be incorporated by way of amendment. 8. As observed earlier, the eviction petition is pending adjudication before the learned Rent Controller for nearly one decade, therefore, it is unbelievable that the petitioner, despite due diligence, was not aware of all the facts that has now been sought to be incorporated by way of amendment. The petitioner has nowhere in earlier reply denied title of the landlord and therefore, cannot now be permitted to turn around and question the same. 9. As regards Teh Bazari receipts issued by the Municipal Corporation, Shimla, the same only pertain to holidays and festivals days and that apart, in case the petitioner is displaying his goods on the street as alleged, but is operating from part of the premises in question and as such, these premises cannot be held to be belonging to the Municipal Corporation so as to make it necessary party for the adjudication of this petition. 10. Merely by using the expression "despite due diligence" in the application, the petitioner has sought amendment of the reply filed to the petition, whereas in the entire application exercise of due diligence is not even made out. 11. "Due diligence" has been defined in Advance Lexicon as under: Such watchful caution and foresight as the circumstance of a particular case demands. 12. Black''s Law Dictionary defines "due diligence" as under: Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case 13. Thus, it can reasonably be stated that due diligence is an idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. The term "due diligence" is specifically used in the CPC, so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 14. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party''s constructive knowledge, claim and is very critical to the outcome of the suit. 15. 14. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party''s constructive knowledge, claim and is very critical to the outcome of the suit. 15. It cannot be denied that it was with a view to shorten the litigation and speed up the trials that amendment in the CPC was brought about. In addition to the amendment brought about in other provisions, Rule 17 of Order 6 was also amended with a view to control filing of applications for amending the pleadings subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings, in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases. This was so held by the Honble Supreme Court in Mohinder Kumar Mehra vs. Roop Rani Mehra and ors. (2018) 2 SCC 132 , wherein it was observed as under: 13. Order VI Rule 17 of C.P.C. as it now exists is as follows:- 17. Amendment of Pleadings.- The Court may at any stage of 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 com- menced, 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." 14. By Amendment Act 46 of 1999 with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order VI was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. By Amendment Act 46 of 1999 with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order VI was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even cfter commencement of the trial, when it is shown that in spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases. 15. This Court in Salem Advocate Bar Association, T.N. Vs. Union of India, (2005) 6 SCC 344 has noted the object of Rule 17 in Para 26 which is to the following effect: "26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed cfter 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the pro- vision. " 16. The judgment on which much reliance has been placed by learned counsel for the appellant is Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC 385 . This Court had occasion to consider and interpret Order VI Rule 17 in Paragraphs 15 and 16, in which following has been held:- "15. " 16. The judgment on which much reliance has been placed by learned counsel for the appellant is Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC 385 . This Court had occasion to consider and interpret Order VI Rule 17 in Paragraphs 15 and 16, in which following has been held:- "15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy be- tween the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties 17. Although Order VI Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the Courts jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal with "Hearing of the Suit and Examination of Witnesses Issues are framed under Order XTV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals with "Disposal of the Suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences. 16. Order XV deals with "Disposal of the Suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences. 16. From the aforesaid exposition of law, it would be clearly evident that the entire object to carry out amendment in Order 6 Rule 17 CPC along with its proviso was to stall filing of the applications for amending the pleadings subsequent to the commencement of the trial to avoid surprises and the parties had sufficient knowledge of the others case. It also helps in checking the delay in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile subject to, of course, the parties proving and establishing that in spite of due diligence, it could not raised the plea that is now sought to be raised. 17 The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their pleadings. The Court''s discretion to grant permission for a party to amend his pleading is guided by two conditions - firstly no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, this right is not absolute, but a proviso to Order 6 Rule 17 CPC has been added. The court is also required to ensure that the application for amendment is bona fide and has not been filed with a view to delay the hearing of the case. However, this right is not absolute, but a proviso to Order 6 Rule 17 CPC has been added. The court is also required to ensure that the application for amendment is bona fide and has not been filed with a view to delay the hearing of the case. 18 The object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just and proper and it is settled law that the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide , worthless and/or dishonest amendments. The basic test for grant or refusal of the amendment is that such amendment is necessary for the proper and effective adjudication of the case. 19 Even though the principles applicable to the amendment of the plaint are applicable with equal force to the amendment of the written statement. However, ordinarily the Courts are more liberal in permitting amendment in the written statement, but that does not mean that mala fide , worthless and/or dishonest amendments can still be allowed or where the amendment is likely to cause serious prejudice and injustice to either side or the amendment is otherwise aimed at overreaching the court or is resulted in placing the opposite side in such a situation, which cannot be compensated by awarding costs. 20. Now, adverting to the facts of the instant case, I have no hesitation to conclude that the very purpose of filing of the application is to delay the proceedings because admittedly the premises in question are commercial and the petitioner has tried to turn this litigation into fruitful industry and this obviously cannot be permitted by this Court; and rather this practice has been seriously deprecated by the Honble Supreme Court in South Eastern Coalfields Limited vs. State of M.P. and others (2003) 8 SCC 648 , wherein it was held as under: 28. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation. 21. It is, therefore, the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive. In Indian Council for Enviro-Legal-Action vs. Union of India and others (2011) 8 SCC 161 , it is noticed that conduct of the parties is to be taken into consideration and it was held as follows 223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view. 1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. 2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party. 3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court. 4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. 5. 3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court. 4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. 5. No litigant can derive benefit from the mere pendency of a case in a court of law. 6. A party cannot be allowed to take any benefit of his own wrongs. 7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. 8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts. 22. From the aforesaid discussions, it is evidently clear that this petition not only sans merit, but the intent behind filing this petition is also not bonafide as the only endeavour of the petitioner appears to prolong the litigation so as to enable him to reap the benefits from the demised premises in his occupation thereby convert this litigation into a fruitful industry. 23. Accordingly, this petition is dismissed with costs of Rs.25,000/- to be paid to the respondent before 31.12.2018. 24. Before parting, it would be noticed that the petition for eviction is pending adjudication before the learned Rent Controller for nearly one decade, therefore, the learned Rent Controller is requested to decide the same as early as possible and in no event later than 31.3.2019 . 25. Pending application(s), if any, also stands disposed of.