Punjab-Haryana High Court
Baldev Singh vs R.P. Kumar on 20 April, 2011
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR No.6145 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.6145 of 2010 (O&M)
Date of Decision: 20.04.2011
Baldev Singh
. . .Petitioner
Versus
R.P. Kumar
. . . Respondent
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.D.K. Bhatti, Advocate,
for the petitioner.
Mr.Puneet Jindal, Advocate,
for the respondent.
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RAKESH KUMAR JAIN, J.
This revision petition is directed against the order dated 29.7.2010 passed by Rent Controller, Jalandhar by which an application filed by the landlord for amendment of the eviction petition has been declined.
In brief, the landlord filed petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act') in order to seek eviction of the tenant from the demised premises (shop), inter alia, on the ground of non-payment of rent, nuisance and personal necessity. The eviction petition was filed on 24.5.2006 to which written statement was filed on 21.7.2006. The landlord filed the application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short 'CPC') in order to insert averment "that the petitioner is not occupying any other building in the urban area of Jalandhar. That he has not got vacated such a building in the urban area". This application was contested by the tenant by filing a reply and was ultimately dismissed by the learned Rent Controller observing that the issues were framed on 30.11.2006, the landlord closed his evidence on 5.11.2009 and respondent closed his evidence on 17.2.2010 and when the case was fixed for rebuttal evidence or in the alternative for arguments, application has been filed. Besides the delay, it is also observed that the amendment neither pertains to a new fact or a subsequent event which was CR No.6145 of 2010 (O&M) -2- not within the knowledge of the landlord, which could be taken by him earlier, nor it is a case that despite exercise of due diligence it was not within his knowledge.
The learned counsel for the petitioner has submitted that this amendment is to satisfy the statutory requirement which would not change the nature of the eviction petition and could be inserted by way of an amendment. In this regard, he has relied upon a decision of the Supreme Court in the case of "Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar" 1990(1) SCC 166.
On the contrary, learned counsel for the respondent has submitted that the proviso to Order 6 Rule 17 of the CPC has been added by way of Section 7 of the CPC (Amendment) Act, 2002 w.e.f. 1.7.2002 only to discourage this kind of applications which are field at the fag end of the trial. He also relied upon decisions of the Supreme Court in the case of "Chander Kanta Bansal Vs. Rajinder Singh Anand" 2008(3) Civil Court Cases 490 and "Vidyabai & Ors. Vs. Padmalatha & Anr." 2009(1) Civil Court Cases 798.
I have heard both the learned counsel for the parties and perused the record.
It is no doubt true that the landlord is required to allege and prove that he is not occupying any other similar accommodation in the same urban area and has also not vacated similar accommodation in the same urban area after the commencement of Act, 1949. The contention of the learned counsel for the petitioner is that this averment has been left out due to oversight and can be allowed to be introduced in the eviction petition at any stage of the trial. The judgment which he has relied upon in the case of Gajanan Jaikishan Joshi (Supra) deals with a suit for specific performance filed under the Specific Relief Act, 1963 in which the plaintiff had failed to aver the mandatory requirement of Section 16(c) of the Specific Relief Act, 1963 that he has always been ready and willing to perform his part of the agreement. While allowing the application for amendment, the Supreme Court has held that the said amendment would not change the nature of the suit and would do complete justice between the parties. However, before the amendment of the CPC by way of CPC (Amendment) Act, 2002, the Court had the power to allow amendment in the pleadings at any stage of the proceedings on such terms as may be just for the purpose of determining the real question of controversy between the parties. But after the said amendment CR No.6145 of 2010 (O&M) -3- w.e.f. 1.7.2002, a proviso was added to Order 6 Rule 17 of the CPC which reads as under:
"provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial"
In the case of Chander Kanta Bansal (Supra) cited by learned counsel for the respondent, the word "due diligence" was explained by the Supreme Court to mean reasonable diligence which a prudent man would exercise in the conduct of his own affairs. It was also observed that delay and latches on the part of the parties to the proceedings is also a relevant factor for allowing or disallowing an application for amendment. In the case of Vidyabai & Ors. (Supra) it was held by the Supreme Court that amendment of the pleadings after commencement of the trial can only be allowed if Court comes to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial as the proviso to Order 6 Rule 17 of the CPC is mandatory in its character.
Learned counsel for the respondent had also argued that judgment of the Supreme Court in the case of Gajanan Jaikishan Joshi (Supra) cited by learned counsel for the petitioner is earlier to the introduction of the proviso to Order 6 Rule 17 of the CPC which has been held to be mandatory by the Supreme Court and as such the said judgment is not applicable. In the application for amendment nothing has been mentioned except for alleging inadvertence on the part of the petitioner for not taking this plea in the eviction petition but the said averment would not be suffice to allow the petitioner to take this plea at the fag end of the trial as he had already closed his evidence. The plea which is sought to be taken is, admittedly, not a plea which could be called to be subsequent event, therefore, it was well within the knowledge of the petitioner as to whether he had some other accommodation in the same urban area or he had vacated similar accommodation in the same urban area after the commencement of Act, 1949. The question is that these pleadings are not only to be taken in the eviction CR No.6145 of 2010 (O&M) -4- petition but has also to be proved by the petitioner who has led no evidence in this regard as stated by learned counsel for the respondent.
Keeping in view the totality of facts and circumstances narrated hereinabove, I do not find any merit in the present revision petition for the purpose of granting opportunity to the petitioner to amend the eviction petition. Hence, the revision petition is hereby dismissed though without any order as to costs.
(RAKESH KUMAR JAIN)
APRIL 20, 2011 JUDGE
Vivek