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2018 DIGILAW 885 (ALL)

RAJENDRA SINGH BEDI v. DEEPAK KUMAR

2018-04-12

SANGEETA CHANDRA

body2018
JUDGMENT : 1. This Application under Article 227 of the Constitution of India has been filed praying for quashing of the order dated 05.03.2018 passed by the District Judge, Sambhal, Chandausi whereby Application (Paper No. 172 Ga) has been disposed off and Application (Paper No. 174 Ka and 176Ka) which related to an Amendment Application filed by the tenant-petitioner praying for permission to amend the written statement that was filed before the learned Trial Court, have been rejected. 2. I have perused the order passed by the learned District Judge. The learned District Judge has observed that the tenant who was appellant before the District Judge was trying to delay the proceedings and conclusion of hearing of the Appeal. The Appellate Court has rejected the Application for amendment of the written statement also on the ground that the amendment sought to bring on record the facts that would flash out the preliminary objection now proposed to be taken with regard to the maintainability of the SCC Suit before the learned Trial Court. The learned District Judge has observed that preliminary objection regarding the maintainability of SCC Suit No. 20 of 2012 should have been taken before the learned Trial Court at the initial stage of hearing when the Suit was filed in 2012. The petitioner/tenant/appellant waited for six long years and after the learned Trial Court decreed the Suit and even after the Appeal was filed and pleadings exchanged, the tenant has sought permission for amendment in the written statement. No reason has been given for delay except that the lawyer of the tenant did not advise him properly when the Suit was being tried before the learned Trial Court and when the Appeal was being filed. 3. Shri Ranjeet Saxena appearing for the petitioner has stated that the amendment sought in the written statement related to the jurisdiction of the Trial Court and the maintainability of the SCC Suit which is a pure question of law and can be raised at any time even in Appeal. 4. The learned counsel for the petitioner has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Chakreshwari Construction Pvt. Ltd. Versus Manohar Lal, (2017) 5 SCC 212 . 5. 4. The learned counsel for the petitioner has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Chakreshwari Construction Pvt. Ltd. Versus Manohar Lal, (2017) 5 SCC 212 . 5. The Hon'ble Supreme Court was considering a case where the appellant had filed an eviction petition against the respondent before the Rent Tribunal claiming eviction of respondent on the ground of subletting of the suit shop alleged to have been done by the respondent in favour of one other person. The other ground on which the eviction was claimed related to the availability of alternative accommodation to the respondent in the city where he was carrying on his business. 6. The appellants after close of evidence filed two applications - one was under Order 6 Rule 17 of the Code of Civil Procedure read with Section 21 of Rajasthan Rent Control Act, 2001 wherein they sought to amend their main eviction petition on the ground that on information received under RTI Act the appellant had received proof that the respondent was carrying on the business in alternative accommodation in the city. 7. The learned Courts below had rejected the said application. The Supreme Court allowed the Appeal. The application made by the appellant for amendment of the eviction petition and application made for filing additional documents was allowed subject to payment of costs and the respondent was also granted opportunity to make a consequential amendment in the written statement and also to file additional documentary evidence in rebuttal and to adduce any further oral evidence in support of their case in addition to what had already been said before the learned Trial Court. The Hon'ble Supreme Court has observed in paragraph 16 of Chakreshwari Construction Pvt. Ltd. (supra) thus : "It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the Appellant in the eviction petition; Secondly, the amendment did not introduce any fresh cause of action; Thirdly, the amendment was relevant for deciding the question of subletting and availability of alternative accommodation with the Respondent; Fourthly, the facts proposed in the amendment not being in the personal knowledge of the Appellant and having obtained from the concerned State department recently, the same could be allowed to be brought on record for its consideration; Fifthly, no prejudice was likely to be caused to the Respondent, if the applications had been allowed because the Respondent in such eventuality would have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal; and lastly, in order to prove the case, the amendment proposed and permission to file documents should have been granted." 8. The Hon'ble Supreme Court, thereafter, has observed in paragraph-17 of Chakreshwari Construction Pvt. Ltd. (supra) thus:- "It is true that there was some delay on the part of the Appellant in filing the applications but, in our opinion, the Appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the Court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis." 9. The question of maintainability of the suit before learned Trial Court was a mixed question of fact and law. 10. Shri Ranjeet Saxena, Advocate, has also relied upon the State of Bihar and others Vs. Modern Tent House and others reported in 2017 (9) SCALE 425 wherein the respondents had filed a money suit against the appellants for recovery of Rs.41,59,418/-. The appellants (defendants) filed their written statement denying such claim. Accordingly, issues were framed on the basis of pleadings on record. After the evidence of plaintiffs was over, the defendants moved an Application under Order 6 Rule 17 C.P.C. seeking amendment in the written statement by adding two paragraphs in their written statement. The appellants (defendants) filed their written statement denying such claim. Accordingly, issues were framed on the basis of pleadings on record. After the evidence of plaintiffs was over, the defendants moved an Application under Order 6 Rule 17 C.P.C. seeking amendment in the written statement by adding two paragraphs in their written statement. The Trial Court rejected the Application and the High Court in Revision affirmed the order of the learned Trial Court. 11. The Supreme Court observed that the suit filed by the plaintiffs against the defendants was still pending before the learned Trial Court and evidence of the parties was not yet over. Since the trial was going on the Hon'ble Supreme Court observed that it would be in the interest of justice that the proposed amendment of the defendants should have been allowed by the learned Court below rather than to allow the defendant to raise such plea at the appellate stage if such occasion arose. The Appeal was allowed. The order of learned Trial Court and the High Court was set aside and a direction was issued to the learned Trial Court to ensure expeditious disposal of the suit which was filed in 2002. 12. Shri Ranjeet Saxena has also referred to a judgment of a Coordinate Bench of this Court in Ram Das Versus Mukesh Chand reported in 2017 (6) ADJ 533 . In this case the plaintiff had filed a suit for prohibitory injunction. Written Statement was filed. The court framed issues. Thereafter, the plaintiff felt that the shop in question had not been adequately described in the plaint map and therefore, he filed an Amendment Application and sought amendment in the plaint map. This Application filed under Order 6 Rule 17 of Code of Civil Procedure was opposed by the defendants as not maintainable and the plaintiff withdrew the Application. Later on, he filed another Amendment Application. After withdrawal of the Application that was filed earlier and before the new Amendment Application was filed, the trial Court had framed issues. It was in this background that the second application was rejected. 13. Later on, he filed another Amendment Application. After withdrawal of the Application that was filed earlier and before the new Amendment Application was filed, the trial Court had framed issues. It was in this background that the second application was rejected. 13. This Court placing reliance upon the observations made by the Hon'ble Supreme Court in Revajeetu Builders & Developers vs. Narayanswamy & Sons, (2009) 10 SCC 84 observed that the proposed amendment did not in any manner change the nature of the suit nor did it take away any right which may have vested in the defendant in interregnum. The trial was still pending before the learned Court below. Therefore, this Court allowed the application for amendment of the plaintiff with a direction that amendment be carried out in the plaint before the learned Court below within fifteen days and a direction was issued to the trial Court to proceed with the suit thereafter. 14. As is evident from the facts mentioned herein above, the Case laws which have been cited by the learned counsel for the petitioner before this Court are distinguishable on facts. In one of the cases i.e. in Chakreshwari Construction Pvt. Ltd. (supra) the Hon'ble Supreme Court has referred to the reasons for allowing the amendment proposed to be made by the appellant. It has emphasized that the amendments proposed do not change the nature of case originally set up, the amendments do not introduce any fresh cause of action, the amendment sought for was relevant for deciding the question of subletting and availability of alternative accommodation, the facts proposed to be added by way of amendments were not in the personal knowledge of the appellant and were obtained under RTI and no prejudice was likely to be caused to the respondent if such an application was allowed because the respondent would eventually have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal. 15. From a perusal of the pleadings on record, it is evident that the plaintiff-respondent herein had filed a SCC Suit No. 20 of 2012, which was decreed on 20.04.2012. The said SCC Revision No. 20 of 2012 was filed before the Additional District Judge, Varanasi. Objections were filed by the landlord against the revision filed by tenant. 15. From a perusal of the pleadings on record, it is evident that the plaintiff-respondent herein had filed a SCC Suit No. 20 of 2012, which was decreed on 20.04.2012. The said SCC Revision No. 20 of 2012 was filed before the Additional District Judge, Varanasi. Objections were filed by the landlord against the revision filed by tenant. Written arguments were directed to be filed by the learned District Judge, Chandausi by both the parties. Thereafter, the amendment application was moved, which amendment application was objected to by landlord and thereafter rejected by the order impugned. 16. I have gone through the order impugned. I do not find any legal or factual infirmity therein. This petition is dismissed. 17. No order as to costs.