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2019 DIGILAW 437 (ALL)

Ajay Prakash Agrawal v. Urmila Agrawal

2019-02-20

MANOJ KUMAR GUPTA

body2019
JUDGMENT : Manoj Kumar Gupta, J. The matter taken up in revised call. Counsel for the petitioner is present. None is present for the respondent. 2. The instant petition is directed against the orders dated 16.7.2011 and 20.8.2011 passed by the Prescribed Authority in P.A. Case No.3 of 2007 disposing of applications filed by the petitioner-landlord seeking amendment in the release application. By the first order dated 16.7.2011, the amendment application has been allowed in part. By the second order dated 20.8.2011, another application filed by the petitioner seeking amendment in the release application has been rejected. 3. The proceedings arises out of a release application filed by the petitioner under Section 21 (1) (a) of U.P. Act No.13 of 1972 (for short 'the Act') setting up personal need for the shop in dispute in the tenancy of the respondent. According to the case set up in the release application, the petitioner became owner and landlord of the shop in dispute on basis of a sale deed dated 2.11.1987 executed by Kumod Agarwal son of Om Prakash Agarwal. The disputed shop came to the share of Kumod Agarwal in a family settlement. It was alleged that the shop in dispute is required for business purpose by the petitioner and members of his family as the petitioner is doing business from a rented garage. The release application was contested by the respondent-tenant by filing a written statement in which she did not dispute that originally the shop belonged to the joint family. It was taken on rent in the life time of her husband Late Dr. Surendra Prakash Agarwal, who was running his clinic from the said shop. It is alleged that other members of the joint hindu family who were co-owners and landlords having not been impleaded, the release application filed by petitioner alone is not maintainable. She also alleged that she had purchased the disputed shop from one of the members of the joint hindu family viz. Manju Rani D/o Om Prakash Agrawal by sale deed dated 15.1.1983 and accordingly became co-sharer in the joint family property. She has been running her clinic in the disputed shop as a tenant. She alleged that without her consent, there could have been no family settlement, nor the disputed shop could have been sold to the petitioner by sale deed dated 2.11.1987. 4. She has been running her clinic in the disputed shop as a tenant. She alleged that without her consent, there could have been no family settlement, nor the disputed shop could have been sold to the petitioner by sale deed dated 2.11.1987. 4. During pendency of the release application, the respondent-tenant sought various amendments in the written statement. By the amendment sought, she took a plea that she having already purchased a share in joint family property from Smt. Manju Rani D/o Om Prakash by sale deed dated 15.1.1983, the sale deed obtained by the petitioner dated 2.11.1987 with regard to the disputed shop does not confer any right in his favour nor results in establishment of relationship of landlord and tenant between the parties. It was further alleged by amendment that before filing release application, notice under Proviso to sub-section (1) of Section 21 was not given, consequently, the release application is not maintainable. She further pleaded that the theory of oral family partition is a sham one. She also alleged that in P.A. Case No.139 of 1979 filed by Ved Prakash against her husband Dr. Surendra Prakash, only a portion of the premises under tenancy was released. The judgment passed in said proceedings operates as res-judicata and a fresh petition seeking release of the remaining portion is not maintainable. 5. After the amendment applications filed by the respondent-tenant were allowed by the Prescribed Authority, the petitioner filed an application 143 Ga seeking amendment in the release application. It is stated in the application that since amendment was permitted in the written statement, therefore, the petitioner had two options; one, of filing replication and second, of seeking amendment in the original release application. The petitioner had chosen to exercise the second option. 6. The Prescribed Authority allowed the amendment application in part. It placed reliance on the judgment of Supreme Court in Gurdial and others Vs. Raj Kumar Aneja and others, (2002) 2 SCC 445 , where in para 18 the Supreme Court held as follows:- "When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase "consequential amendment" finds mention in the decision of this Court in Bikram Singh & Ors. Vs. Ram Baboo & Ors., (1981) AIR SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment". 7. The Prescribed Authority was of the opinion that paragraph 1 as sought to be added would be consequential amendment as per the above judgment of the Supreme Court, whereas paragraph 7-A, 7-B and 8-A would not fall in the definition of consequential amendment. Accordingly, the prayer in respect thereof was rejected. 8. The petitioner thereafter filed another application for amendment bearing Paper No.147 Ga by which he again sought the same amendment. This time it was alleged that the amendment sought is necessary for determining the real questions in controversy between the parties. On previous occasion, similar amendment was rejected on technical ground, therefore, the present application be allowed. 9. The Prescribed Authority by impugned order dated 20.8.2011 has rejected the application Paper No.147 Ga by observing that under Proviso to Order 6 Rule 17, once the trial has commenced, no amendment can be permitted which a party could have raised before the commencement of the trial had due diligence been exercised. The court has also observed that the evidence of the parties is over and the matter is listed for hearing. 10. Counsel for the petitioner submitted that the impugned orders are manifestly illegal. It is urged that the amendments sought on the first occasion by Paper No.143 Ga were all consequential amendments and the view to the contrary is illegal. In the alternative, it is submitted that the second application Paper No.147 Ga ought to have been allowed. 10. Counsel for the petitioner submitted that the impugned orders are manifestly illegal. It is urged that the amendments sought on the first occasion by Paper No.143 Ga were all consequential amendments and the view to the contrary is illegal. In the alternative, it is submitted that the second application Paper No.147 Ga ought to have been allowed. He further submitted that the proceedings for release of tenanted premises under Section 21 are summary proceedings and the provisions of Order 6 Rule 17 CPC do not strictly apply. 11. As noted above, the Prescribed Authority allowed the first amendment application in part. It rejected the amendment sought vide paragraph 7-A, 7-B and 8-A, being of the opinion that the same was not a consequential amendment. 12. It is noteworthy that vide paragraph 7-A, the specific plea which was sought to be introduced was that the premises which was released in pursuance of P.A. Case No.139 of 1981 is being occupied by brother of the petitioner namely Arvind Prakash Agrawal. The said accommodation is just sufficient to meet his need and the petitioner cannot be accommodated in the said shop. It was in reply to the amendment which was introduced by the respondent in the written statement vide paragraph 7-A whereby it was pleaded that the judgment in PA Case No.139 of 1979 would operate as res-judicata. Thus, the view taken by the Prescribed Authority that the amendment sought vide paragraph 7-A was not a consequential amendment, is wholly erroneous in law and cannot be sustained. 13. The amendment sought to be introduced by paragraph 7-B is to the effect that since after 19.4.1982 when the premises was released in earlier proceedings, considerable time has elapsed. In the interregnum period, the circumstances have changed. The need of the petitioner has become more pressing, while on the other hand, the son of the respondent-tenant alongwith his wife had opened a huge nursing home in the name of Agrawal Nursing Home and since the respondent hardly sits on the disputed shop but keeps it closed, therefore, in case of eviction, she would not suffer any hardship. 14. In the considered opinion of the Court, the said plea was also in response to the amendment sought in the written statement. 14. In the considered opinion of the Court, the said plea was also in response to the amendment sought in the written statement. Apart from it, it is well settled that subsequent events are to be considered while considering release application based on bonafide need of the landlord. The assertion that the respondent's son has opened a huge nursing home and the respondent is keeping the shop closed and would thus suffer no hardship is definitely a relevant consideration while deciding the release application. The courts below erred in rejecting the said amendment on a manifestly illegal view that it does not fall within the ambit of consequential amendment. It also lost sight of the fact that even if it was not a consequential amendment, the same related to the events taking place during pendency of the proceedings and thus, ought to have been allowed. 15. The next amendment sought was for introducing a plea vide paragraph 8-A to the effect that the petitioner being member of joint family, had been co-landlord of the disputed property since before its purchase by sale deed dated 2.11.1987, consequently, the bar under Proviso to sub-section (1) of Section 21 would not apply. The said plea was definitely in response to the amendment sought vide paragraph 15-A in the written statement and would thus fall under the definition of consequential amendment. 16. It is noteworthy that the amendments which were refused, were again sought by the petitioner by filing application Paper No.147 Ga on the ground that the same would enable the court to decide the dispute between the parties in a proper and effective manner. However, the court, placing reliance on Proviso to Order 6 Rule 17 CPC, once again declined the said amendments. 17. The proceedings for release under Section 21 (1), which lies before Prescribed Authority, are of summary nature, where the case is normally decided on basis of affidavits. It is well settled that the need of the landlord should exist not only on the date of filing of the release application but it should continue to exist even when the release application is decided. All subsequent events which have material bearing are, therefore, required to be considered by the Prescribed Authority while deciding a release application. It is well settled that the need of the landlord should exist not only on the date of filing of the release application but it should continue to exist even when the release application is decided. All subsequent events which have material bearing are, therefore, required to be considered by the Prescribed Authority while deciding a release application. All the provisions of the Civil Procedure Code have not been made applicable except those provided under Section 34 and also those prescribed by Rules. Order 6 Rule 17 has not been made applicable to proceedings before the Prescribed Authority, though the principles contained therein would apply. Consequently, the power of the Prescribed Authority to allow amendment in the release application is not circumscribed by the limitations provided by Proviso to Order 6 Rule 17 CPC. Since the Prescribed Authority has permitted the respondent-tenant to amend the written statement, it was in the interest of justice that the amendments which have been sought by the petitioner, which definitely touches upon the controversy raised through amendment in the written statement, should have been allowed. The rejection of the amendment application has resulted in manifest error of law and failure of justice, as the petitioner has been prevented from raising pleas in defence which are germane to the controversy. 18. Accordingly, the order dated 16.7.2011 in so far as it purports to reject part of the amendment application and the order dated 20.8.2011 are hereby quashed. The writ petition is allowed. The petitioner is permitted to incorporate the amendments in the release application subject to payment of a cost of Rs. 10,000/- to the respondent within a period of one week. The respondent shall be at liberty to file additional written statement within two weeks thereafter. The Prescribed Authority shall make endeavour to decide the release application by fixing short dates, preferably within a period of next three months.