Revision vs By Advs.Sri.P.K.Ibrahim on 11 June, 2018

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Kerala High Court

Revision vs By Advs.Sri.P.K.Ibrahim on 11 June, 2018

1.The revision petitioner is the petitioner in I.A.484/2016 in O.S.32/2015 of the Waqf tribunal, Kozhikode. He is the tenant under the respondent. The original suit was filed seeking an order of eviction with respect to room Nos.9/228, 9/230 and 9/231 from the revision petitioner herein. The revision petitioner filed I.A.484/2016 under Order VI Rule 17 of the CPC to amend the written statement. In the aforesaid I.A it is averred that he is conducting business only in room No.9/228, and door No.9/230 and 9/231 are in possession of one Subeesh Kumar and Abdul Samad respectively. When he started business in room No.9/228 in the year 1992, the other rooms were not in existence. Since the rooms wherein the defendants conducts the business is a large hall, he admitted the tenancy of other two rooms under the plaintiff, in CRP(WT).229 of 2018 2 the written statement and reply notice, on mistake. But he came to know the real state of affairs only recently. Hence he prayed for impleading the tenants in room No.9/230 and 9/231 and also for incorporating the pleadings as stated above. It is also averred that the property wherein the tenanted premises situates belongs to Isiyathul Islam trust and this property was never purchased by the plaintiff.

2.The respondent filed objection contending that the revision petitioner had already admitted his tenancy under the plaintiff in the reply notice and in the written statement filed earlier. Thus, the revision petitioner had acknowledged the relationship of lesser and lessee. Therefore the revision petitioner cannot be allowed to raise a new plea contrary to the pleadings in the original written statement. So also it is contended that there is no bona fides and the petitioner intends to protract the eviction proceedings initiated against him.

CRP(WT).229 of 2018 3

3.After considering the rival pleadings, the tribunal passed the impugned order on a finding that the matters sought to be impleaded in the written statement is barred by the legal embargo contemplated under Section 116 of the Indian Evidence Act. The legality and propriety of the aforesaid finding are challenged in this revision petition.

4.Heard the learned counsel for the petitioner and the learned counsel for the respondent.

5.Going by the impugned order, admittedly the trial of the original petition has not commenced so far. Therefore the rigour of Order VI rule 17 will not come into play. The application is dismissed on the sole ground that the application is hit by the legal embargo contemplated in Section 116 of the Act. We have gone through the averments in the amendment application and we find that there is no prayer for deleting the earlier averments, whereby CRP(WT).229 of 2018 4 the revision petitioner admitted the tenancy, and substituting the new facts in that place. It is settled law that even inconsistencies could be taken in pleadings. Since the petitioner has not prayed for deleting the earlier averments and substituting the new facts, there is no attempt from the part of the revision petitioner to wrigle out from the admissions, if any, made earlier. The petitioner has sought for incorporating certain new facts also, in addition to earlier averments. Anyhow, we find that no prejudice will be caused to the landlord/respondent, if the amendment is allowed. That apart, we further find that the legality and sustainability of the matters sought to be incorporated by way of amendment need not be evaluated or weighed meticulously at the time of considering an amendment application, if no prejudice would be caused to the opposite party. If the pleadings are inconsistent and mutually destructive, it is for the petitioner to suffer. The right of defence of the defendant cannot be restricted narrowly, by employing the tools of CRP(WT).229 of 2018 5 procedure unless prejudice would be caused to the opposite party. In Sushil Kumar Jain v. Manoj Kumar (2009 (2) KLT SN 81 (SC)), the Supreme Court held that amendment of plaint and amendment of written statement are not governed by the same principles. The court has to be more liberal in allowing the amendment of written statement than that of plaint.

6.The learned counsel for the respondent cited Kerala State Wakf Board, Kochi v. Rajesh (2016 (3) KHC 439). We have gone through the aforesaid decision and we find that in the facts of the aforesaid decision, the amendment application was filed after the commencement of trial and production of evidence from both parties. So also, tenancy had been admitted in that case. In the instant case, as we have noticed earlier, trial has not commenced so far and rigour of Order VI Rule 17 will not come into play.

7.In the above view, we find that there was no CRP(WT).229 of 2018 6 sufficient reason to reject the application seeking amendment. Consequently the impugned order will stand set aside and I.A.No.484/2016 will stand allowed. However, all the contentions can be raised in the course of trial and the observations made above will not stand in the way of raising those contentions. The waqf tribunal, Kozhikode is directed to dispose of O.S.32/2015 as early as possible, untrammelled by the above findings, at any rate, within a period of three months from today.

Sd/-

K.HARILAL Judge Sd/-

A.M.BABU Judge Mrcs/12.6.

/True copy/ P.S.To Judge

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