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Himachal Pradesh High Court · body

2019 DIGILAW 1453 (HP)

Brij Sood v. Vijay Kumar

2019-09-26

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioners have challenged order, dated 09.07.2019, passed by the Court of learned Rent Controller, Shimla in CMA No. 69-6 of 2019 in Rent Petition No. 192-2 of 2017, titled as Vijay Kumar Vs. Smt. Brij Sood and others, vide which, an application filed by the petitioners herein under Order VI, Rule 17 of the Code of Civil Procedure praying for amendment of the reply filed to the eviction petition, has been dismissed. 2. It is not in dispute that after the pleadings were completed and issues were framed, landlord concluded his evidence on 22.11.2018. Thereafter, the case was listed for recording evidence of the present petitioners, who are respondents before the learned Rent Controller. However, neither any steps were taken nor any witness was got examined by the petitioners before the learned Rent Controller despite three opportunities having been granted to them in this regard by the learned Rent Controller. It is thereafter that an application was filed under Order VI, Rule 17 of the Code of Civil Procedure by them for amendment of the reply filed to the eviction petition, mentioning therein that subsequently it had come to their notice that in a family partition between the co-sharers of the landlord, a shop had fallen to his share, which was commercial in nature and which would demonstrate that there was no need for the landlord to have the tenants evicted as he was having sufficient accommodation for running his commercial activities. 3. In the reply which was filed to the said application by the landlord, the averments made in the application, purportedly necessitating the amendment of the reply, were denied by the landlord. 4. Said application has been dismissed by the learned Rent Controller vide impugned order by holding that for the purpose of proving the facts which the tenants intended to introduce in the reply, amendment of the reply was not necessary, as they could lead evidence to prove such facts on record. Learned Court further held that the tenants rather than straightway leading evidence to prove said facts, had filed an application, which in fact was not at all necessary for adjudication of the matter in dispute. Learned Court further held that the tenants rather than straightway leading evidence to prove said facts, had filed an application, which in fact was not at all necessary for adjudication of the matter in dispute. Learned Rent Controller also held that the application was filed by the tenants at a belated stage without there being anything mentioned in the application as to when did the tenants came to know of the facts, which they intended to introduce by way of amendment in the reply. It further held that the tenants had not disclosed the date, time and period when these facts came to their knowledge and on these grounds, learned Rent Controller held that as due diligence could not be established by the tenants, therefore, there was no merit in the application and the same was dismissed. 5. In my considered view, the findings so returned by the learned Rent Controller cannot be said to be either perverse or not borne out from the record. It is matter of record that application does not contains any reasons explaining as to why despite due diligence, the facts which the tenants intended to introduce by way of amendment to be incorporated in the reply, could not be earlier incorporated by them in the original reply to the eviction petition or within some reasonable time thereafter. Besides this, a perusal of the original reply filed by the tenants to the eviction petition demonstrates that in para-8 thereof, while denying the averments made in the eviction petition, they have categorically stated that the contention of the landlord that he has no other suitable commercial premises for use of his business except the tenanted premises in occupation of the tenants is incorrect. In view of the said pleadings contained in the reply filed to the eviction petition, the facts which tenants intend to introduce by way of proposed amendment in the reply easily can be proved by them while leading their evidence. 6. Further, it is clearly borne out from the record that despite three opportunities having been given to the tenants, they failed to lead their evidence. 6. Further, it is clearly borne out from the record that despite three opportunities having been given to the tenants, they failed to lead their evidence. In this view of the matter, the only conclusion which this Court can draw as to why the application was filed for amendment of the reply is that the tenants wanted to gain more time as they were aware that three opportunities given for leading evidence are reasonable and until and unless the party satisfies the Court that there are bonafide reasons not to lead the evidence, their right to lead evidence would be closed by the learned Rent Controller. 7. In this view of the matter, this Court concurs with the findings returned by the learned Rent Controller that there was no justification why despite due diligence the amendment proposed in the application could not be incorporated in the reply earlier. Further in view of the specific stand of the tenants in the original reply filed to the eviction petition, the proposed amendments are not even necessary for adjudication of the lis. Filing of the application was nothing but delay tactic adopted by tenants. Therefore, as this Court finds no merit in the present petition, the same is dismissed, so also pending miscellaneous applications, if any.