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2018 DIGILAW 951 (ALL)

RAMESH CHANDRA SAVITA v. VIDHYAWATI

2018-04-18

SANJEETA CHANDRA

body2018
JUDGMENT/ORDER : Sangeeta Chandra, J. This petition under Article 227 of the Constitution of India has been filed by the petitioners praying for quashing of the order dated 07. 07. 2017 passed by the learned Judge, Small Causes Court/Civil Judge(Senior Division), Budaun in SCC Case No. 5 of 2005 (Vidhyawati and others vs Ramesh Chandra and others) and the order dated 27.01.2018 passed by the learned District Judge, Budaun in SCC Revision No. 5 of 2017 (Ramesh Chandra Savita and others vs Smt. Vidhyawati and others) and for issuance of a direction to the learned Trial Court to allow his amendment application No. 127 Ga for amendment in the written statement. 2. Learned counsel for the petitioners submits that after written statement was filed and the matter was at the stage of preparation of hearing, their counsel noticed that initially the landlady had sent a notice on 20.11.1991 alleging that the petitioners tenants were in arrears of rent on 16.03.1991, and they should pay up arrears of rent and also by the said notice, the tenancy was terminated. Again a notice was subsequently issued on 07.01.2003, wherein it was alleged that the tenants had not paid up the rent and arrears as demanded and has not vacated the premises and was liable to pay damages for use and occupation of the premises for the period between 22.02.2002 to 21.04.2005 apart from proceeding for ejectment. 3. The petitioners in the Original Suit filed a written statement, but due to inadvertence could not bring on record of the trial court, the notice terminating the tenancy of the petitioner way-back by the landlady on 20.11.1991, and the objection that the present proceedings were initiated only in the year 2005, i.e. much after 12 years from the initial notice. Accordingly, the amendment application under Order VI Rule 17 was moved, which was registered as paper No. 127 Ga on 26.04.2017. 4. This application was rejected by the learned trial court by its order dated 07.07.2017 saying that the trial had begun and this fact relating to non-maintainability of the suit on the ground of limitation is a question relating to the jurisdiction of the trial court and can be considered even without the pleadings being placed on record. 5. 4. This application was rejected by the learned trial court by its order dated 07.07.2017 saying that the trial had begun and this fact relating to non-maintainability of the suit on the ground of limitation is a question relating to the jurisdiction of the trial court and can be considered even without the pleadings being placed on record. 5. Aggrieved by the order dated 07.07.2017, the petitioners-tenants filed a Revision before the District Judge, Budaun, which was numbered as SCC Revision No. 5 of 2017. The Revisional Court by its order dated 27.01.2018 has rejected the Revision on the ground that the amendments sought to be incorporated by way of an application was a purely legal plea, and the learned Court below was bound to look into the plea of limitation as it goes to the route of the jurisdiction exercised by the learned trial court and there was no need to interfere in the order passed by the learned trial court. 6. Learned counsel for the petitioners has cited a judgment rendered by the Hon'ble Supreme Court in Baldev Singh and others vs. Manohar Singh and another, (2006) AIR SC 2832, wherein the Supreme Court considered a similarly placed case of the appellant, and referred to other binding precedents relating to Order 6 Rule 17, and observed in paragraph 13 that the plea of limitation can be allowed to be raised as an additional defence by the appellants. Therefore, there was no reason why the amendment of the written statement introducing an additional plea of limitation had been rejected by the learned court below. 7. Learned counsel for the petitioners has also referred to Order VIII Rule 2 of the C.P.C. with regard to duty cast upon the defendant to plead all special facts, and take all such grounds of defence, which are available to him, and failure to do so, may prejudice his cause. Such special grounds may be for instance, fraud, limitation, release payment, performance, showing illegality etc. 8. Learned counsel for the respondents however has pointed out the proviso to Order 6 Rule 17, which says that no application for amendment shall be allowed after 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. 8. Learned counsel for the respondents however has pointed out the proviso to Order 6 Rule 17, which says that no application for amendment shall be allowed after 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. He has referred to the judgment rendered by the Hon'ble Supreme Court in Ajendraprasadji N. Pande & Another vs Swami Keshavprakeshdasji N. & Others, (2006) 12 SCC 1 , wherein in paragraph 43, the Hon'ble Supreme Court has observed that after the trial of the case has commenced, no application for amendment of pleading shall be allowed unless the requirement in the proviso is satisfied. The proviso was added on the recommendation of the Law Commission, as it was meant to shorten the litigation and speed up disposal of the cases and avoid delaying trial. 9. Having considered the arguments made by the learned counsel for the petitioners and having perused the orders impugned, this Court finds that the amendment application of the petitioners has been rejected only on the ground that question of limitation is purely a legal plea, and the Court is duty bound to consider the same even otherwise. There is an observation also made by the learned trial court that only material facts have to be pleaded and not the law, and by means of amendment application only law relating to limitation with regard to maintainability of the suit was being prayed to be additionally considered. 10. In view of the observations made by the learned courts below, the interest of justice would suffice, if this Court binds the learned court below to take into consideration the issue of limitation as a point for determination at the time of final decision of the aforesaid SCC suit. 11. Since, the SCC Suit has been pending since 2005, it would be appropriate that necessary expedition is shown by the trial court in the matter, and the suit itself may be decided on merits within a period of six months from the date a certified copy of this order is produced before the court concerned. 12. With the aforesaid observation/direction, this petition is disposed of.