Allahabad High Court
Alok Garg vs Smt. Anju Khurana And 2 Others on 11 December, 2013
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 4 Case :- S.C.C. REVISION No. - 524 of 2013 Revisionist :- Alok Garg Opposite Party :- Smt. Anju Khurana And 2 Others Counsel for Revisionist :- Syed Mahmood Hon'ble Manoj Misra,J.
Heard learned counsel for the revisionist.
By the instant revision, the revisionist has challenged the order dated 08.11.2013 passed by the Additional District Judge, Court No.15, Ghaziabad in S.C.C. Suit No.35 of 2012 by which the Application No.56-C of the revisionist, seeking amendment in the written-statement, has been rejected.
The facts relevant for deciding the case are that S.C.C. Suit No.35 of 2012 was instituted by the plaintiff-respondents against the defendant-revisionist for possession of the suit property after eviction of the defendant as also for arrears of rent, mesne profits, damages, etc. Amongst other pleas it was pleaded in the plaint that the original owner of the property in suit was Sunil Khurana, the husband of the plaintiff no.1 and the father of plaintiff nos. 2 & 3. After the death of Sunil Khurana, the plaintiffs, who were his heirs and legal representatives, became the owner. In paragraph no.3 of the plaint it was stated that the plaintiff no.2 (Anuj Khurana) had let out the premises in suit to the defendant-revisionist at a rent of Rs.6,200/- per month. In paragraph no.4 thereof it was stated that to avoid raising of any technical objection, the plaintiff nos.1 and 3 have also joined the plaintiff no.2 in instituting the suit against the defendant-revisionist. The defendant-revisionist contested the suit by raising various pleas. The principal plea, amongst several others, was that there was no relationship of landlord and tenant, inasmuch as, the premises in dispute was taken on license, which was month to month. Thus, according to the defendant-revisionist the suit was not maintainable before the J.S.C.C. Court, as there was no relationship of landlord and tenant. In response to paragraph no.3 of the plaint, where a specific averment was made by the plaintiffs that the premises in dispute was let out to the defendant on a month to month tenancy, at the rate of rent of Rs.6200/- p. m., the defendant-revisionist in paragraph no.3 of the written-statement stated as follows:-
"That the contents of paragraph 3 of the plaint is a matter of record but it is true that the licence was month to month as the all out supervision was done by the plaintiffs."
In the entire written-statement, neither there was any averment with regards to lower rate of rent or license fee payable for the premises nor there was any averment that the license or tenancy was split amongst several other persons. In paragraph no.19 of the written statement which related to the additional pleas, it was stated as under:
"That the correct position is that while taking the house on rent it was admitted by both of the parties that the possession of the defendant will be that of the licensee and the license fees would be paid in such a way that it shall be increased @ the rate of 200 Rs. Per year and the license was for the period of 10 years."
After the commencement of trial, while the court set out to record the evidence of the plaintiff and such evidence was being recorded, an application was filed by the defendant-revisionist, seeking amendment in the written-statement, so as to add at the end of paragraph no.19 of the written-statement as follows:-
"Moreover, to clarify the reason, it is not out of place to mention that when the alleged tenancy began, it was split tenancy in favour of Alok Garg, Smt. Alka Garg, Ujjwal Garg and Vibhor Garg at the rate of Rs.1,550/- each."
It is this amendment application, which has been rejected by the court below on ground: (a) there is no satisfactory explanation for the delay in taking the plea, after commencement of trial, therefore, the same is barred by the proviso to Order VI Rule 17 CPC; (b) it seeks to introduce a new case of split license or split tenancy when there was no such case taken by the defendant in his written statement and rather there had been admission by non specific denial of the averments made in paragraph no.3 of the plaint, that the tenancy, which according to the defendant was license, was created by the plaintiff no.2 in favour of the defendant, month to month, at the rate of Rs.6,200/- per month; and (c) that the real controversy between the parties to the suit was whether the relationship was that of a licensor & licensee or a landlord & tenant, therefore, the amendment was not even required for the purpose of determining the real controversy between the parties.
The submission of the learned counsel for the revisionist is that it is well settled in law that contradictory or alternative pleas can be set up in defense. Therefore, if the defendant had earlier admitted that the license fee payable was at the rate of Rs.6,200/- per month, he was not precluded from raising a plea that the license /tenancy was split into four persons at the rate of Rs.1,550/- per month. It has also been submitted that the court ought to have been liberal in grant of amendment, inasmuch as, the amendment was necessary for deciding the real controversy between the parties. It has also been submitted that the correctness of the pleas sought to be introduced is not to be considered, at the stage of considering the amendment application. It has also been submitted that in view of the decision of the Apex Court in the case of Baldev Singh V. Manohar Singh: (2006) 6 SCC 498, the bar of the proviso is to apply only when the matter is ripe for hearing, therefore, the court below was not justified in applying the proviso to Rule 17 of Order VI CPC.
Having considered the submissions of the learned counsel for the revisionist and on perusal of the record, the Court finds that it is not disputed to the learned counsel for the petitioner that the amendment application was filed after the court below had set out to record evidence. A perusal of the impugned order reveals that the affidavit of plaintiff, in evidence, was filed on 06.02.2013, and after three adjournments, the evidence was completed on 26.7.2013. Amendment application was filed in the month of September, 2013. It is thus established that the same was filed after commencement of the trial, therefore, the bar under the proviso to Order VI Rule 17 CPC was applicable. In the case of Vidyabai v. Padmalatha: (2009) 2 SCC 409, the apex court was of the view that where issues have been framed and affidavits regarding evidence filed and dates have been fixed for cross examination, then before allowing amendment, court should be satisfied that in spite of due diligence, party could not have introduced amendment before commencement of trial. In the case of Ajendraprasadji N. Pandey V. Swami Keshavprakashdasji N.: (2006) 12 SCC 1, it has been held that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. In Ajendraprasadji's case (supra) the decision of Baldev Singh's case (supra) was considered. In Ajendraprasadji's case (supra) a mere averment in the amendment application that the same could not be submitted before the Court in spite of utmost care taken by the applicant was not found to have satisfied the requirement of the proviso to Order VI Rule 17 CPC, in absence of the particulars, that the matter now sought to be introduced by the amendment could not have been raised earlier in spite of due diligence.
Coming to the instant case, in the amendment application there is just a bald statement of the defendant that during the course of trial it has come to his knowledge that the tenancy since inception was split in favour of four persons. No particulars have been given as to how, when and from whom this fact came to his knowledge. Moreover, the defendant-revisionist himself is one of those four persons, therefore, the explanation offered for the delay is completely unacceptable. Thus, seen in the light of the apex court's decision in the case of Ajendraprasadji's case (supra), the explanation offered by the revisionist does not satisfy the requirement of the proviso to Order VI Rule 17 CPC. Accordingly, the court below was justified in refusing amendment on ground that it was barred by the proviso to Order VI Rule 17 CPC.
As regards the submission of the learned counsel for the revisionist that a defendant can take contradictory as well as alternative pleas, there can be no cavil. But in the instant case, the defendant has sought to introduce a new case of split tenancy, which goes contrary to his earlier stand where he did not deny that the premises were let out to him at the rate of Rs.6200/- p.m. though, according to the revisionist, it was a license. Now, by the proposed amendment, a new case has been sought to be introduced that when the tenancy began, it was split tenancy in favour of Alok Garg, Smt. Alka Garg, Ujjwal Garg and Vibhor Garg at the rate of Rs.1,550/- each, which was not permissible as it would have been seriously prejudicial to the interest of the other side. Therefore, in the facts of the instant case, the trial court was justified in refusing the amendment.
In view of the discussion made above, I do not find any legal infirmity in the order passed by the court below. The revision is dismissed.
Order Date :- 11.12.2013 AKShukla/-