Jagdish Chander (Since Deceased) v. Shri. Digamber Jain Panchayat Mandir
2024-07-29
DEEPAK GUPTA
body2024
DigiLaw.ai
JUDGMENT Mr. Deepak Gupta, J. This order shall dispose of two petitions titled above, as similar facts and issues are involved therein. These petitions have arisen out of proceedings of two ejectment petitions, filed in respect of two different shops, forming part of same premises, in the same circumstances. Shop No.1 was rented out to Jagdish Chander (petitioner in CR-4101 of 2024); whereas shop No.10 was rented out to Suresh Kumar (petitioner in CR-2759 of 2024), by the same landlord, i.e. Shri. DigamberJain Panchayat Mandir. In both the petitions, landlord sought the ejectment amongst other grounds, on the ground of bonafide necessity. 2. Petitioners before this Court are the appellants-tenants before learned Appellate Authority, Hisar and they are aggrieved by the similar order dated 03.04.2024 (Annexure P-1), whereby their applications under Order VI Rule 17 CPC seeking amendment in their respective written reply to the petitions, have been dismissed during the pendency of their rent appeals bearing Nos. RA/823 of 2018 and RA/182 of 2019. 3. In order to avoid confusion, parties shall be referred as landlord and tenants. Facts are being noticed from CR N: 4101 of 2024. 4.1 The landlord Shri. Digamber Jain Panchayat Mandir, Jahajpul, Hisar filed two petitions under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 against tenants Jagdish Chander and Suresh Kumar seeking their eviction from demised shop Nos.1 and 10 as per details given in the petitions (Copy Annexure P-2). One of the grounds for seeking ejectment is the bonafide need of the landlord. It was pleaded that there are 10 shops in one lane in the premises of the landlord temple opening towards the road side, including the demised shops and all these shops are in possessions of different tenants and that the landlord requires all these 10 shops for constructing Tyagi Bhawan/Sant Niwas for stay of hermits, Sadhus, Munis etc. 4.2 The petition was resisted by the tenant by filing reply (Annexure P-3). After framing of issues and taking necessary evidence, the ejectment petitions was accepted by learned Rent Controller vide his order dated 12.01.2018 (copy Annexure P-4). 4.3 Against this ejectment order, the tenant filed appeal on 15.02.2018 before the Appellate Authority, Hisar and during the pendency of the appeal, moved an application on 04.12.2023 (copy Annexure P-5) seeking amendment of the written statement.
4.3 Against this ejectment order, the tenant filed appeal on 15.02.2018 before the Appellate Authority, Hisar and during the pendency of the appeal, moved an application on 04.12.2023 (copy Annexure P-5) seeking amendment of the written statement. 4.4 It was pleaded that there is a huge double story building with basement in the precincts of the Mandir and a school under the name of 'Bhagwan Parshav Nath Digamber Jain School' was being run in the said basement; whereas its ground floor and first floor were in possession of the Mandir. During pendency of the appeal, school was closed w.e.f. 01.07.2019, as per letter dated 04.03.2020 written by Shri. Rajiv Jain, Secretary of the Mandir to the Block Education Officer, Hisar and now the area of the basement, on which the school was earlier being run is in possession of the Mandir, which area is more than 10 shops and that in view of this subsequent development, the projected need of the landlord has eclipsed and so, by way of the amendment in the written statement, the tenant wanted to plead these subsequent events. 4.5 After taking the reply (copy Annexure P-6), wherein the landlord opposed the application, learned Appellate Authority by way of the impugned order dated 03.04.2024 dismissed the application. 5. Assailing the aforesaid orders, it is contended by learned counsel that the reasoning given by the Appellate Court to reject the amendment applications is fallacious, as subsequent events are required to be brought to the notice of the Court in order to show that the need of the landlord has eclipsed and that by rejecting the application, the case of the tenant has been prejudiced. It is also contended that in another case titled "Shri. Digamber Jain Panchayat Mandir v. Sandeep Kumar Parik" in respect of another shop in the same premises, the Trial Court has allowed the application for additional evidence to bring on record the subsequent events by way of an order dated 25.05.2023 (Annexure P-7). Learned counsel contends further that amendment in the written statement can be permitted even at the appellate stage. 6. I have considered submissions of learned counsel for the parties and has appraised the paper book carefully. 7.
Learned counsel contends further that amendment in the written statement can be permitted even at the appellate stage. 6. I have considered submissions of learned counsel for the parties and has appraised the paper book carefully. 7. It is no doubt true that there is no prohibition for the Appellate Court to permit amendment of the written statement even at the appellate stage as has been held by Hon'ble Supreme Court in "Ishwardas v. The State of M.P. and others", 1979(4) SCC 163 . In "North Eastern Railway Administration, Gorakhpur v. Bhagwan Das", 2008(8) SCC 511 , the Hon'ble Supreme Court has held that Order 6, Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings and that all the amendments ought to be allowed, which satisfy the twin conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. It has been held further that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. In "Revajeetu Builders & Developers v. Narayanaswamy & Sons and others", 2009(10) SCC 84 , it has been held by the Apex Court that the liberal view should be taken in amendment of the pleadings and that once there is no malafide intention, amendment ought to be allowed. The Hon'ble Supreme Court laid down certain principles, which read as under:- "67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 68. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17 . These are only illustrative and not exhaustive. 69. The decision on an application made under Order 6, Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. 70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments." 8. In the light of the aforesaid legal principles, it is required to be seen as to whether in the present cases, application moved by the tenant for seeking amendment in the written statement was bonafide or malafide. 9. As has been noticed earlier that ejectment petition was filed in October, 2016 and the same was allowed by the Rent Controller in January, 2018. The appeal against the ejectment order was filed by the tenant in November, 2018 and it kept pending for more than 05 years, when in December, 2023, the tenant moved application seeking amendment. By way of the amendment, tenant want to bring on record an event subsequent to the ejectment order of the Rent Controller, but which had taken place in July, 2019. Meaning thereby the tenant wanted to bring amendment in the written statement by moving application in December, 2023 in respect of such an event, which had taken place more than 04 years prior in July, 2019. This in itself shows the malafide intentions of the tenants in seeking amendment. 10. Learned Appellate Court, while rejecting the applications, has rightly made certain observations in this regard, which are relevant to notice:- "7.
This in itself shows the malafide intentions of the tenants in seeking amendment. 10. Learned Appellate Court, while rejecting the applications, has rightly made certain observations in this regard, which are relevant to notice:- "7. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the list. But this is subject to an exception. Wherever subsegment events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a cautious cognizance of the subsegment changes of fact and law to mould the relief. 8. In the present case, the ejectment in question has been passed in the year 2018 and the present appeal is pending for adjudication since last six years. When the case was fixed for arguments of the present appeal and last opportunity had been granted to the appellant-tenant for arguments of the present appeal, at that time, the appellant presented the present application for amendment in the written statement at the belated stage without there being any explanation of delay. Now the law is well settled that if any subsegment events sought to be brought on record by way of amendment of pleadings are of such nature that bona fide requirement of suit premises by landlord stands completely eclipsed, then such amendment which is necessary for effective and complete adjudication of issue may be allowed by courts but such subsegment event must be brought to notice of the court by making an appropriate application promptly but the appellant-tenant has filed the present application in the year 2023 i.e. after four years of subsegment events. The school was run in the basement of the premises of the respondent-Mandir and this premises cannot be used by the respondent-landlord as shop, whereas the ejectment order has been passed for the personal necessity of the shop. It appears that the applicant-appellant-tenant has filed the present application just to delay the decision of the present appeal.
The school was run in the basement of the premises of the respondent-Mandir and this premises cannot be used by the respondent-landlord as shop, whereas the ejectment order has been passed for the personal necessity of the shop. It appears that the applicant-appellant-tenant has filed the present application just to delay the decision of the present appeal. Finding no merit in the application moved by the applicant-appellant-tenant for amendment of the written statement, the same is hereby dismissed." 11. As far as the contention of learned counsel for the petitioner to the effect that in another petition titled "Digamber Jain Panchayat Mandir v. Sandeep Kumar Parik", bearing Rent Petition No.96 of 2016, learned Rent Controller had allowed the tenant to lead secondary evidence vide order dated 25.05.2023 (Annexure P-7) is concerned, it has no bearing to the issue involved in this petitions. By way of Annexure P-7, application for additional evidence was allowed; whereas the petitioner-tenant in the present case was seeking amendment of his written statement, which has been rejected. Even otherwise, learned appellate authority was not bound by the order of the Rent Controller passed in another ejectment petition, whereby application for secondary evidence was allowed, may be to bring on record the subsequent events of the same nature. 12. Having noticed the facts and circumstances of the present case and the malafide intention of the tenant (petitioner herein) in seeking amendment in the written statement, this Court is of the considered view that there is no reason whatsoever warranting interference in the well-reasoned impugned order as passed by the Appellate Authority, rejecting the application of the tenant for seeking amendment in the written statement. Finding no merits in both the revision petitions, the same are hereby dismissed. Photocopy of this order be placed on the connected case file.