ORDER : CM No. 1/2017 1. The respondent No.1/non-applicant, who happens to be the father-in-law of the applicant/appellant and father of the respondent No. 2 respectively, filed a suit against appellant and the respondent No.2 for possession in respect of four rooms, one store, two bath rooms and temporary kitchen in House No. 6-A Extension, Gandhi Nagar, Jammu and also for permanent prohibitory injunction restraining the appellant and respondent No. 2 from interfering in any manner in respect of two rooms, one kitchen, one bath room, lobby in possession of the respondent No. 1 or changing or altering the nature of property or creating any encumbrance upon the said property. The suit for possession was filed by the respondent No. 1, claiming to be owner of the abovementioned property because of the continuous quarrel between the applicant/appellant and respondent No. 2, which had become a source of nuisance for the respondent No. 1 and his wife. 2. The applicant/appellant and respondent No. 2 filed their written statements separately. The applicant/appellant in her written statement pleaded that she was a lawful tenant of the respondent No. 1 and the suit for possession and permanent prohibitory injunction filed against her was not maintainable in view of the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. Besides, it was also pleaded by the applicant/appellant that with the marriage of the applicant/appellant and respondent No. 2, the respondent No. 1 had permitted them to live and reside in the house, thereby creating perpetual licence in their favour to live and reside in their house and use the same for their benefit in any manner, if they so liked. 3. The suit was filed in the year, 2001and the same was decreed by the Court of learned Principal District Judge, Jammu vide judgment and decree dated 07.07.2015 in favour of the respondent No. 1. The appellant/applicant has preferred an appeal against the said judgment and decree and in appeal, the instant application has been filed by the appellant/applicant under Order 6 Rule 17 CPC for amendment of the written statement and for permission to lead additional evidence on the ground that the suit was filed in the year, 2001 and the Jammu and Kashmir Protection of Women from Domestic Violence Act came to be passed in the year 2010. The right to shelter has been envisaged in favour of the wife as an aggrieved person under the Act (supra). At the time of filing of the written statement in the suit, the applicant/appellant could not raise this defence in her written statement as enactment of the aforesaid Act is a subsequent event, which confers legal rights upon the appellant/applicant. It was also pleaded that the learned Principal District Judge, Jammu while deciding the suit filed by the respondent No. 1 has placed reliance upon the judgment of the Hon’ble Supreme Court of India in S.R. Batra vs. Taruna Batra, AIR 2007 SC 1118 . It is further averred that the appellant/applicant, respondents and mother-in-law of the applicant/appellant constituted a joint Hindu family and all the family members had been living jointly till the respondents left the suit house, leaving the appellant/applicant in isolation. The applicant/appellant intends to amend the written statement by pleading, “that after the passing of the Protection of Women from Domestic Violence Act, 2010 right to shelter in favour of the aggrieved person has been envisaged. The suit house is a joint property of the defendants, as it has been got blended into joint Hindu family property by contribution of the defendant No.2 as well as her husband i.e. defendant no. 1 in the joint pool of the family. Such income has been utilized in the construction and renovation of the suit house and the parties have been living together as a joint family. As the suit house is a joint property of defendants and plaintiff, therefore, the defendant No. 2 has a right of residence in the suit house.” 4. The respondent No. 1/non-applicant, who is the contesting respondent being the decree-holder, has filed the objections to the application stating therein that the application has been filed with the sole purpose of further delaying the matter considering the fact that the respondent No. 1 is 83 years old and the appellant/applicant seeks to set up an entirely new case at a belated stage, which is not permissible in law. It is further stated that case under Section 498-A RPC that was instituted by the appellant/applicant against him has resulted in the acquittal of the non-applicant/respondent No.1. Had the applicant/appellant made any contribution to the property, she would have mentioned the same in the written statement. It is further stated that case under Section 498-A RPC that was instituted by the appellant/applicant against him has resulted in the acquittal of the non-applicant/respondent No.1. Had the applicant/appellant made any contribution to the property, she would have mentioned the same in the written statement. The respondent No. 1/non-applicant has denied that the construction was raised out of the contribution made by the parties. It is further averred that the Domestic Violence Act 2010 has no application so far as instant case is concerned. 5. Mr. Ajay Vaid, learned counsel for the applicant/appellant vehemently argued that the courts should be liberal in allowing the amendment of the written statement even at the appellate stage. He relied upon the judgment of the Hon’ble Supreme Court of India in “Usha Balashaheb Swami & Ors vs Kiran Appaso Swami & Ors”, AIR (2007) SC 1663. 6. Mr. Virender Bhat, learned counsel for the respondent No.1/non-applicant has submitted that an attempt has been made by the applicant to prolong the proceedings by projecting a new case all together in an application seeking amendment of the written statement, which case was never set up before the learned trial court. Once the suit has been decreed in favour of the respondent No. 1/non-applicant, the appellant cannot seek amendment of the written statement by changing the complexion of the defence originally pleaded before the trial court. 7. Heard learned counsel for the parties and perused the record of the case. 8. It needs to be noted that this is a composite application for amendment of the written statement and seeking permission to lead additional evidence but as the permission to lead evidence can be granted only after the application for amendment of written statement is allowed, therefore, first of all, the prayer of the appellant/applicant for amendment of written statement is required to be considered. 9. A suit for possession was filed by the respondent No. 1/non-applicant on the ground that he was the owner of the subject matter of the suit. After the marriage of the applicant/appellant and the respondent No. 2, they started residing with him in the suit property. 9. A suit for possession was filed by the respondent No. 1/non-applicant on the ground that he was the owner of the subject matter of the suit. After the marriage of the applicant/appellant and the respondent No. 2, they started residing with him in the suit property. The applicant/appellant filed the written statement and in the preliminary objection raised by the appellant/applicant, it was stated that applicant/appellant was the lawful tenant of the respondent No. 1/non-applicant under the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, as such, the suit was not maintainable. Simultaneously, it was also pleaded by the applicant/appellant that on account of marriage of the applicant/appellant and respondent No. 2, the non-applicant/respondent No. 1 has created a perpetual licence in their favour to live and reside in the house and use the same in any manner. 10. After considering the pleadings of the parties, the trial court framed the following issues: “1) Whether the valuation of the suit for purposes of court fee and jurisdiction has not been properly fixed? …OPD 2) Whether the suit property has been undervalued for purpose of court fees? ….OPD 3) Whether the suit for possession by an allottee is not maintainable ? …OPD 4) Whether the defendant No. 2 is a lawful tenant of this plaintiff? …OPD 5) Whether the defendant No. 2 is in unauthorized occupation of the suit property? OPP” 6) Whether the plaintiff with in collusion of defendant No. 1 instituted the instant suit by fraud with object to confounding the defendant No. 2 by securing a decision against her? OPD-2 (issue no. 6 struck vide order dated 03.02.2007). 7) Relief? OPP 11. From a perusal of the statement of the applicant/appellant made before the trial court, this Court finds that in her chief-examination, she has specifically stated that the non-applicant/respondent No. 1 was charging Rs. 500/- per month from her as rent and there was an oral tenancy. She further stated that the respondent No. 1 never issued any receipt in her favour. Further, a perusal of the written statement filed by applicant/appellant reveals that there is no whisper in the written statement that she contributed towards the construction/renovation of the suit property. 12. 500/- per month from her as rent and there was an oral tenancy. She further stated that the respondent No. 1 never issued any receipt in her favour. Further, a perusal of the written statement filed by applicant/appellant reveals that there is no whisper in the written statement that she contributed towards the construction/renovation of the suit property. 12. Learned counsel for the non-applicant/respondent No. 1 is correct in submitting before the court that the appellant/applicant has projected an all together a new case in an application seeking amendment of written statement. The Hon’ble Supreme Court in case of Usha Balashaheb Swami (supra), relied upon by the learned counsel for the appellant, no doubt has held that addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement is not objectionable and in case of amendment of the written statement, the Courts should be more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case. Even in this case, the Hon’ble Supreme Court has laid stress on the issue of prejudice that may result in the event of allowing the amendment of the pleadings. 13. As per the mandate of Order 6 Rule 17 CPC, amendment of the pleadings is permissible, provided the same is necessary for effectively adjudicating the real controversy between the parties. So far as the instant case is concerned, right from the beginning, the appellant/applicant had been pleading and rather leading evidence before the trial court that she had been the tenant of the non-applicant/respondent No. 1, though she was his daughter-in-law and suddenly when the suit was decreed against her, she in an appeal against the said judgment and decree, through the medium of instant application filed under Order 6 Rule 17 of the CPC, has taken a u-turn and is trying to set up an entirely a new case, which, if allowed, would cause a serious prejudice to the non-applicant/respondent No.1. The Courts should be liberal in allowing the amendments in the pleadings under Order 6 Rule 17 CPC during the course of the trial of the suit, provided the conditions prescribed by Order 6 Rule 17 CPC are satisfied. The Courts should be liberal in allowing the amendments in the pleadings under Order 6 Rule 17 CPC during the course of the trial of the suit, provided the conditions prescribed by Order 6 Rule 17 CPC are satisfied. But while considering an application seeking amendment of written statement filed at the appellate stage by the unsuccessful defendant, a cautious approach is required to be adopted and only under rarest of rare circumstances, such amendment should be allowed. No doubt an application filed by the judgment debtor for amendment of the pleadings is required to be considered as per the mandate of Order 6 Rule 17 C.P.C. but the issue of prejudice becomes more important and relevant when amendment of written statement is sought by the unsuccessful respondent/defendant at the appellate stage vis a vis when the amendment of pleadings is sought during the trial of the suit before the trial court because the decree holder has earned a judgment after full fledged trial. The amendment of the pleadings cannot be sought as a matter of right at the appellate stage. It would be apt to take note of the observations made by the Hon’ble Supreme Court in “Shivshankara v. H.P. Vedavyasa Char”, 2023 SCC OnLine SC 358, wherein it has been held as under: “We are not oblivious of the settled position that in dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, we should keep reminded of the position that the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage, where, what is called in question is the judgment and decree passed by the trial Court and, in other words, after the adverse decree and without a genuine, sustainable reason. In short, the circumstances attending to the particular case are to be taken into account to consider whether such a prayer is allowable or not and no doubt, it is allowable only in rarest of rare circumstances.-----” (emphasis added) 14. In short, the circumstances attending to the particular case are to be taken into account to consider whether such a prayer is allowable or not and no doubt, it is allowable only in rarest of rare circumstances.-----” (emphasis added) 14. The Hon’ble Supreme Court of India in “LIC v. Sanjeev Builders (P) Ltd., 2022 SCC OnLine SC 1128” has laid down the following principles for the purpose of considering the prayer for the amendment of pleadings: “Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.” (emphasis added) 15. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.” (emphasis added) 15. From the above pronouncements of the Hon’ble Apex Court it is clear that amendment of written statement at the instance of un-successful defendant at the appellate stage is to be allowed in rarest of rare cases provided that genuine and sustainable reasons are there for allowing such amendment but where the amendment is sought for withdrawal of the admission made in the pleadings and with ulterior motive, then the prayer for amendment of the written-statement at the appellate stage has to be refused. 16. The applicant has admitted the ownership of the non-applicant/respondent No.1 and has set up the case before the learned trial court that she was the tenant and had been paying Rs. 500/ per month as rent to the non-applicant/respondent No.1 where as in the present application it is pleaded by her that the suit house is a joint property of the defendants, as it has been got blended into joint Hindu family property by contribution of the appellant as well as her husband i.e. defendant no. 1 in the joint pool of the family. Such income has been utilized in the construction and renovation of the suit house and the parties have been living together as a joint family. This is a clear attempt on the part of the applicant/appellant to withdraw the admission of exclusive ownership of the non-applicant/respondent No.1 qua the suit property, which is not permissible. The fact which cannot be lost sight of is that the suit had remained pending for 15 years before the trial court and the present appeal has been pending before this Court for the last six years and the respondent No.1/non-applicant is 89 years old. The non-applicant/respondent No.1 has earned a judgment after full-fledged trial and if such amendment is allowed which otherwise cannot be allowed, would cause serious prejudice to the rights of the non-applicant/respondent No.1. This court has no hesitation to hold that the present application for amendment of the written statement has been filed with ulterior motive just to prolong the litigation and is actuated with malice. 17. This court has no hesitation to hold that the present application for amendment of the written statement has been filed with ulterior motive just to prolong the litigation and is actuated with malice. 17. In view of what has been said and discussed above, the application seeking amendment of the written-statement is found to be misconceived and once the prayer for amendment of written statement is refused, the prayer for leading additional evidence also cannot be acceded to. Accordingly, the application is dismissed. 18. List the appeal for final hearing on 05.12.2023.