Delhi District Court
Additional District Judge (Central) vs Brahm Dev on 9 July, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 01
TIS HAZARI COURTS, DELHI.
RCA No.: 19/2011
09.07.2012
Vaish Cooperative Adarsh Bank
....Appellant
Versus
Brahm Dev
.....Respondent
Application U/O 6 Rule 17 CPC
ORDER
This is an application under Order 6 Rule 17 CPC filed by appellant for amendment of written statement.
2. It is submitted by ld. counsel for appellant that the application has been necessitated on account of some relevant pleas not taken in the written statement which are germane to non suit the respondent as well as certain subsequent events which if considered would make the case of the respondent nonest.
3. It is submitted that the first and foremost fact which the RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 1 of 10 2 appellant seeks to bring on record is the fact that the contractual relationship between the parties is governed by the lease deed Ex.PW1/2 dated 12.01.2001 which could not have been terminated by the respondent during its first life span of 10 years and secondly that the appellant had a unilateral right to seek renewal of the lease as per the right enunciated in the last five lines of the lease deed Ex.PW1/2. As at the time of filing of the written statement in the suit the appropriate time to invoke that particular right of specific relief of extension of lease deed had not crystallized, the appellant could not have taken the said plea of his right to initiate any action banking upon the said clause of the lease deed Ex.PW1/2.
4. It is further submitted by appellant that another fact which ought to have been placed on record is that the appellant had advanced a loan to respondent and the EMI had been adjustable against the rent. It is an important plea, consideration of which is necessary for the determination of real controversy between the parties. The appellants has already instituted suits for specific performance for renewal of lease deed and also for recovery against the respondent for the loan advanced to him. The amendment application has been RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 2 of 10 3 pressed into service to bring on record these pleas and that they are very necessary to be brought on record to determine the controversy between the parties. The proposed amendments have been specifically detailed in para 23 on page 10 onwards of the amendment application.
5. Ld. counsel has further argued that law on this aspect is clearly settled. The application for amendment of written statement can even be considered at the appellate stage. The court has to look into the reason propounded for seeking amendments without going into the truth, falsity or relative merits of the amendments propounded. Reliance has been placed on 'Gajanan Jaikishan Joshi Vs. Prabhakar Mohan Lal Kalwar' (1190) I SCC 166 which has been relied upon to cite that if the proposed amendments satisfy two conditions of not working injustice to the other sides and being necessary for the purpose of determination of real question of controversy between the parties must be allowed. On the same line case 'Pirgonda Hongonda Patil Vs. K. S. Patil' AIR 1957 SC 363 (V44 C54 May) has been relied upon. Case 'North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by LRs. RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 3 of 10 4 (2008) 8 SCC 511 has also been relied upon to submit the same proposition of law.
6. Ld. counsel for appellant has further relied upon 'B. K. Narayana Pillai Vs. Parameswaran Pillai and Anothere' (2000) 1 SCC 712 to make submissions that while considering an application for amendment liberal approach is to be adopted as a general rule and court should not adopt a 'hypertechnical' approach. Technicalities should not come in the way of administration of justice, more so when the other party can be compensated with costs. This case has also relied upon that power to allow an amendment is undoubtedly wide and must be considered in the wider interest of justice.
7. It has also submitted that the appellant that the defendant has a right to take alternative plea of defence and just because alternative pleas have been taken is not a ground to reject the amendments. On the similar line of inconsistent and alternative pleas the case of 'Arundhati Mishra (smt) Vs. Sri Ram Charitra Pandey' (1994) 2 SCC 29 has been relied upon. 'Pandit Ishwardas Vs. State of Madhya Pradesh and Others' (1979) 4 SCC 163 has been relied upon to submit that the appellate court can even allow a new plea to RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 4 of 10 5 be taken at the appellate stage by virtue of amendments.
8. Application has been vehemently opposed by ld. counsel for respondent stating that the amendment application has been engineered to protract the disposal of the appeal and to defeat the rights of the respondent. As far as the plea of right of renewal and the respondent having taken a loan from the appellant are concerned no nexus has been show as how they are relevant for the determination of controversy between the parties. It is submitted that lack of due diligence is very much apparent in the conduct of the appellant and the pleas were very much in its knowledge, power and possession. Thus the pleas which are now being taken were available at the time of filing of written statement and could have been pressed into service. It is further submitted that by virtue of amendment of the Code of Civil Procedure once the trial has commenced the application for amendment cannot be filed. Even otherwise the amendments as proposed are not bonafide or relevant for the purpose of this case.
9. Ld. counsel for respondent has relied upon 'Ajendraprasadji N. Pande & Anr Vs. Swami Keshavprakeshdesji N. Ors.' AIR 2007 SC 806 to submit that once trial commences amendment of written RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 5 of 10 6 statement could not be allowed. Reliance is also placed upon 'N. S. Construction & Ors. Vs. Som Dev' 131 (2006) DLT 632 stating that amendments were not allowed in that case at the stage of final hearing of the suit on there being lack of bonafides of the applicant and application being a misuse of process of law intended to delay the disposal of the case. Respondent has also relied upon 'M/s Hans Rolling Shutter Works Vs. Airman & Sailors Coop. Group Housing Society Ltd.' 85(2000) DLT 466 on this aspect.
10. In rebuttal ld. counsel for appellant has cited Section 108(A)c of Transfer of Property Act to show that if the tenant pays the rent the lease could not be terminated during the time limited by it. The reference to Section 112 and 113 of the Transfer of Property Act has also been made stating that acceptance of rent amounts to forfeiture and waiver of notice of quit.
11. I have considered the submissions propounded before me, contents of the application, reply and records of the trial court.
12. I am in full agreement with ld. counsel for appellant that the amendment can be considered at any stage even at the appellate stage. This is subject to caveat that the applicant is able to exhibit bonafide RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 6 of 10 7 and plausible reasons to manifest that despite due exercise of diligence the facts as stated by way of amendment could not be brought before the court earlier. I am also in full agreement with ld. counsel for appellant that hypertechnical approach should not be adopted while considering such applications.
13. The suit or an appeal being an extension of the suit has a purpose viz. a search for truth. Therefore, it is incumbent to ensure that the parties have been afforded full opportunity to present their respective cases until and unless they have forfeited the same by way of their own conduct or election.
14. I have considered the written statement filed by appellant in the trial court. During the trial, lease deed has been relied upon as Ex.PW1/2 and its terms and conditions were before the trial court for consideration while passing the impugned judgment. The appellant in its written statement, more specifically in para 6 of reply on merits, has specifically opposed the right of the respondent to terminate the lease before the expiry of 10 years.
15. Of course, at the time of filing of written statement the appellant could not have taken the objection as to renewal clause as it was pre RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 7 of 10 8 mature at that time and therefore even if the objection had been taken at that time it would have been of little or no value being an extraneous facts not relevant to the matter in controversy. But it is very much clear that appellant has consciously taken a plea that respondent has no right to terminate the lease during its initial currency of 10 years. Thus this aspect is very much in consideration before the ld. trial court. Whether that fact has been considered or not or not considered properly can be seen by the appellate court while hearing the appeal but the fact remains that a plea has been taken in this regard. The plea of right of renewal after the expiry of initial 10 years of lease is secondary/subservient to the plea of the respondent having no right to terminate the lease. Of course, the appellant has initiated a separate proceedings by fling a suit for specific performance at a time when it is stated that cause of action has arisen and the matter is pending before the court of competent jurisdiction. The plea of the respondent having taken a loan from the appellant bank has no nexus with the cause of action which is propounded in the suit and would have been an extraneous plea, even if taken, as it would not have any bearing on the matter in controversy. It may be RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 8 of 10 9 another fact which may have no impact on the merits of the case but would give some cause of action or right to the appellant to initiate a prosecution. The reference of Section 108, 112 and 113 of Transfer of Property Act are the legal aspects and these can be propounded in accordance with law before the appellate court while examining the propriety, correctness or legality of the impugned judgment.
16. In my view it is manifest on record that the facts propounded in the amendment application were very much within the knowledge, power and possession of the appellant and there is no justification to press them into service at this stage and in fact no plausible reason has crystallized on record. In so many words, the proposed amendments have been propounded ostensibly with a view to seek a denovo trial of the case and not with some bonafide motives to assist the court in getting hold of the material to do complete and substantial justice or to bring on surface the real controversy between the parties.
17. The application is apparently not moved with bonafide motives and therefore deserve dismissal with costs. However, I am refraining from imposing any cost and application of appellant under Order 6 Rule 17 CPC is accordingly dismissed.
RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 9 of 10 10
18. As prayed, copy of order be given dasti to the parties on the payment of usual charges by way of court fees stamps. Announced in the Open Court On 09.07.2012 (MAN MOHAN SHARMA) ADJ (Central)1, Delhi RCA 19/2011 Vaish Cooperative Adarsh Bank Vs. Brahm Dev. Page no. 10 of 10