Allahabad High Court
Ramji Vishwakarma vs Smt.Manupa Devi on 1 November, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 57076 of 2012 Petitioner :- Ramji Vishwakarma Respondent :- Smt.Manupa Devi Petitioner Counsel :- Ajay Kumar Singh,Ashish Kumar Singh Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ajay Kumar Singh, learned counsel for the petitioner and perused the record.
2. This writ petition has arisen out of an order dated 13.07.2012 passed by Judge Small Cause Court, Varanasi rejecting petitioner's application for amendment in written statement in S.C.C. Suit No. 56 of 2010 and the order dated 12.10.2012 passed by Additional District Judge, Court No. 8, Varanasi dismissing petitioner's revision.
3. The respondent, Smt. Manupa Devi filed S.C.C. Suit No. 56 of 2010 against petitioner who is a tenant in the accommodation in question, namely, House No. C 9/295, Mohalla Habibpura Chetganj, Varanasi seeking his ejectment from accommodation in question and recovery of arrears of rent, damages etc. In para 1 of the plaint the plaintiff-respondent asserted that she is the owner and landlord of house No. 9/295, i.e., the disputed premises and in paras 3, 4 and 5 thereof she stated that petitioner-tenant was let out accommodation in question and was paying rent on the receipts signed by respondent-landlord's husband but the rent was not paid after May, 2005.
4. The petitioner-tenant filed written statement wherein he admitted the averments made in para 1, 2 and 3 of plaint but denied the averments made in paras 4 and 5. It was explained in para 15 of the written statement that rent was always paid to plaintiff-respondent herself and not to her husband. It is also stated in para 16 of written statement that plaintiff-respondent did not give receipts despite receiving rent from petitioner-tenant. Thereafter the petitioner-tenant filed an application dated 15.05.2012 stating that due to mistake of his earlier counsel some relevant facts could not be stated in the written statement which was necessary to clarify the facts stated in written statement and, therefore, he may be permitted to add para 14A in the written statement in the following manner:
^^14d- ;g fd oknh us Hkou la[;k lh0 9@295 eksgYyk gchciqjk] okMZ psrxat] ftyk okjk.klh dks fodz; foys[k fnukad 13-12-2002 bZ0 ds }kjk [kjhnk tks mifucU/kd okjk.klh ds dk;kZy; esa fnukad 13-12-2002 iathd`r gSA bl foys[k esa okfnuh us Hkou la[;k lh09@295 ds Hkwry ij fLFkr ,d dejk o izFke ry ij fLFkr ,d dejk [kjhnk tks bl ifjlj ds mRrjh&if'peh dksus ij 8 QhV x 8 QhV eki dk gSA izfroknh ds fdjk;snkjh okyk Hkou ifjlj ds izFke ry ij tkfuc iwjc&nf{k.k fn'kk ij fLFkr gS ftls okfnuh us fodz; foys[k ds }kjk ugh [kjhnk x;k gS mUgsa bl dejs dk u rks fdjk;s ysus dk gd gS u gh bl dejs ds lEcU/k esa csn[kyh dk okn nkf[ky djus dk vf/kdkj gSA ifjlj ds izFke ry ij dqy pkj dejs gSa ftlesa ek= ,d dejk okfnuh }kjk 13-12-2002 }kjk [kjhnk x;k gSA okfnuh }kjk [kjhns x;s ifjlj esa izfroknh dk fdjk;snkjh okys dejk lfEefyr ugha gS okfnuh dh ekax ij izfroknh }kjk cksukQkbMh ds rkSj ij dejs dk fdjk;k fn;k tkrk jgk ftls ysus dh vf/kdkfj.kh okfnuh ugha gSA** "That plaintiff purchased House No. C 9/295 Mohalla Habibpura, Ward Chetganj, District Varanasi through sale-deed dated 13.12.2002, which is registered as on 13.12.2002 in the office of Sub-Registrar, Varanasi. Through this sale deed, the plaintiff purchased one room situated at the ground floor of House No. C 9/295 and one room situated at the first floor which is on the north-western corner of the premises and measures 8 feet x 8 feet. The tenanted house of defendant is situated east-southwards on the first floor of the premises and the said house has not been purchased by plaintiff. He has no entitlement to realise rent for this room nor has he any right to file a suit for eviction in regard to the same. Situated on the first floor of the premises, there are total four rooms of which only one room has been purchased by the plaintiff through the sale deed dated 13.12.2002. The premises purchased by the plaintiff do not include the tenanted room of defendant. Upon the demand of the plaintiff, the rent from the room continued to be paid bona fide by the defendant which the plaintiff is not entitled to realise." (English translation by the Court)
5. The aforesaid application for amendment was contested by plaintiff-respondent and thereafter it has been rejected by Trial Court on the ground that the amendment sought to be made by petitioner would result in refuting an admission he has already made in written statement and in fact the alleged amendment is nothing but an attempt to change the very stand already taken by petitioner by denying his admission already made which cannot be permitted. Against the aforesaid order dated 13.07.2012 passed by Trial Court rejecting petitioner's application for amendment, a revision was preferred and Revisional Court held that unless requirement of Order VI Rule 17 of Code of Civil Procedure is satisfied that despite due diligence the tenant was not in a position to bring those facts earlier, a subsequent amendment sought to change the stand or to take a mutually destructive plea, cannot be allowed.
6. Sri A.K. Singh, learned counsel for the petitioner submitted that an alternative plea can always be taken and an amendment which does not change the nature of pleading ought to have been allowed. He placed reliance on Apex Court's decisions in Ajai Agarwal and others Vs. Har Govind Prasad Singhal and others, AIR 2006 SC 282; North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das, AIR 2008 SC 2139; Sushil Kumar Jain Vs. Manoj Kumar and another, AIR 2009 SC 2544; and, Revajeetu Builders and Developers Vs. Narayanswamy and Sons and others, 2009(10) SCC 84.
7. Earlier the amendment in pleadings were very liberally allowed by Courts unless it was found that amendment would change the nature of proceedings or would otherwise cause a grave injustice to other party.
8. Time and again, Apex court has given a very wide scope of amendment of pleadings but there has been an intervention of Legislature with an object for preventing dilatory tactics to delay disposal of cases and in that view of the matter, first intervention came by virtue of Amendment Act, 1999 whereby in Order 6; Rules 17 and 18 were omitted. However, this complete omission did not found favour with the litigating people and realizing great hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 was incorporated but a restriction in the shape of a proviso was added therein. Order 6 Rule 17 came to be inserted by Amendment Act, 2002 reads as under:
"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
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"
9. A bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining real question in controversy between the parties. It gives very wide power to the Court for allowing amendment but the proviso added therein restricts such wide power simultaneously by observing that no application for amendment shall be allowed after the Trial has commenced unless the Court comes to the conclusion that inspite due diligence, party could not have raised the matter before the commencement of Trial. Now there is an embargo on an application for amendment to be allowed once the Trial has commenced. The embargo is complete. The only scope, thereafter is that the Court comes to the conclusion that despite due diligence such matter could not have been raised by the parties concerned before the commencement of Trial. Therefore the party seeking amendment, after commencement of Trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of Trial despite its due diligence. After the Trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein since it is prohibited by proviso to Order 6 Rule 17 C.P.C.
10. Before this Court it is not disputed by learned counsel for parties that the Trial has commenced inasmuch the suit being Small Cause Suit, there is no stage of framing of issues separately and hence the evidence has commenced i.e. plaintiff's evidence has already been recorded. The Apex Court in Kailash v. Nanhku AIR 2005 SC 2441 has held that a Trial is deemed to have commenced when the issue are settled and the case is set down for recording of evidence. This view has been followed in Baldev Singh and others Vs. Manohar Singh and another (2006) 9 SCC 498 and Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N. AIR 2007 SC 806. The Apex Court has also held in Ajendraprasadji N. Pande (supra) that Order 6 Rule 17 C.P.C. as amended by Amendment Act, 2002 does not permit an amendment once the Trial has commenced unless despite due diligence, matter could not be raised before the commencement of Trial. The Court held that provision is mandatory and precludes a party to seek amendment of his pleadings once the Trial has commenced unless the requirement of proviso itself is satisfied. In taking this view, the Apex Court also referred to and relied on its earlier decision in Salem Advocate Bar Association Vs. Union of India AIR 2005 SC 3353.
11. To the same extent, is the view taken by this Court in Rajkumar Gurawara Vs. M/s. S. K. Sarwagi and Co. Pvt. Ltd. AIR 2008 SC 2303 and Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others 2009 (1) SCC 84. This Court has also followed the above exposition of law by referring to Revajeetu Builders and Developers (supra) in Sri Krishan Mittal Vs. Upper District Judge C.N. 10 Bijnor and others (Writ A No. 46709 of 2012) decided on 13.9.2012.
12. It is in the above context and circumstances, in my view, the orders impugned in the writ petition should be looked into.
13. The suit was filed in 2010 and the written statement was filed on 20.09.2011. In para 6 of writ petition, it has been stated by petitioner himself that parties have adduced evidence in support of their respective cases and the date is fixed for final hearing. In para 8 of writ petition it is the own case of petitioner that when his counsel was preparing the matter for hearing then he noticed certain facts borne out from the registered sale deed executed by one Ram Chandra Vishwakarma, the erstwhile owner of house in question, in favour of Smt. Manupa Devi, the plaintiff-respondent. In the entire application filed by petitioner seeking amendment there is no averment that despite due diligence he could not brought the facts which he seeks to bring on record by way of amendment earlier when he filed the written statement. The only justification given by petitioner is that his earlier counsel could not notice certain facts which have come to the notice of his new counsel when he was preparing the matter.
14. The authorities cited by petitioner, in my view, lend no help to him. In Sushil Kumar Jain (supra), Apex Court has found that in the case before it, even the state of adducing evidence has not arrived and in these circumstances the Court said that proviso to Order VI Rule 17 C.P.C. is not attracted therein. This is evident from para 15 of the judgement where the Court said that "in this case, in our view, the trial has not yet commenced." Again in para 16 of the judgment the Court said that "in view of admitted fact that not even the issues have yet been framed, documents have not yet been filed, evidence has not yet been adduced, we are of the view that the proviso to Order 6 Rule 17 of the CPC has no manner of application as the trial has not yet commenced."
15. In the present case the situation is otherwise and petitioner himself has admitted and stated in para 6 of the writ petition that trial has commenced, evidence has already been adduced and case is now fixed for hearing. Moreover, it has not been held by the Court in Sushil Kumar Jain (supra) that a defendant can be allowed to withdraw his admission by seeking amendment in written statement. The Court only says that principle with regard to mutually destructive or inconsistent pleas applicable in the case of amendment in plaint would not apply as such where the amendment is sought in the written statement. Even if if an admission has been made by defendant in his written statement, he can always explain the same by seeking amendment in written statement by taking inconsistent pleas or substituting or altering his defence. The Court has clearly said that a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action. For amendment of a written statement the Courts would be more liberal than that of a plaint since the question of prejudice would be far less in the former than in the latter. Addition of a new ground of defence or altering defence or taking inconsistent pleas in the written statement can be allowed. Having said so, the Court, however, has not gone to the extent that even if the amendment is sought at a stage when trial has commenced, without satisfying the requirement of proviso to Order VI Rule 17, still such amendment should be allowed by taking a liberal view. The decision in Sushil Kumar Jain (supra), therefore, would not help petitioner in the present case.
16. In North Eastern Railway Administration, Gorakhpur (supra) the Court has considered Order VI Rule 17 as it existed earlier. This is evident from para 15 of the judgment where the Court has observed that Order VI Rule 17 as it stood at the relevant time and not subsequently amended provision which would apply in the present case. Be that as it may, yet the Court has said that as per the principle applicable for allowing amendment satisfaction of two conditions was necessary, firstly, that amendment would not cause any injustice to other side; and, secondly, it is necessary for the purpose of determining the real question in controversy between the parties. The Court has also said that amendment should be refused only where the other party cannot be placed in the same position as if the pleading has been originally correct but the amendment would cause him injury which could not be compensated in cost.
17. Here applying the above principle this Court find that ownership and title of plaintiff-respondent was admitted by petitioner-tenant in his written statement in respect to accommodation in which he was a tenant and he also admitted that rent was payable to respondent-landlord. In fact he claimed that he has been paying rent regularly to plaintiff-respondent. By seeking amendment in question he wants to say that plaintiff-respondent is not at all, owner and landlord of accommodation in which petitioner is the tenant. Considering the stand of petitioner in written statement wherein the status of plaintiff-respondent as owner and landlord was not disputed, the evidence on other relevant issues have already been adduced between parties and case is now posted for hearing. The kind of amendment petitioner wants would immediately demolish the earlier position since the plaintiff-respondent would have to now require fresh evidence, to show her status as landlord and tenant which was never earlier disputed by petitioner-tenant. It will be very strange to suggest that such a situation would not cause any injustice to other side and would not disturb the position of other side as it would have been as if the pleading had been originally corrected. The decision, therefore, in North Eastern Railway Administration, Gorakhpur (supra) in fact helps this Court to uphold the judgements and orders impugned in this writ petition instead of helping petitioner.
18. Revajeetu Builders and Developers (supra) is a decision in which various authorities on the question of amendment have been considered by Apex Court and in para 67 it has laid down certain illustrative factors which may be necessary to be examined while allowing or rejecting application for amendment. It would be useful to reproduce para 67 of the judgement 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? 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."
19. It is true that these factors, as enumerated above, are not exhaustive but illustrative yet it cannot be lost sight that a decision on an application seeking amendment is serious judicial exercise and it should not be undertaken in a casual manner. Looking into the case in hand from all these angles, as discussed by Apex Court in Revajeetu Builders and Developers (supra), I am satisfied that amendment sought by petitioner at the stage at which the suit is proceeding presently cannot be allowed and secondly, that it would cause serious prejudice to plaintiff-respondent which cannot be compensated in terms of cost. In my view, it cannot be said that courts below have erred in law or otherwise in rejecting petitioner's application for amendment in present case.
20. The writ petition, therefore, is dismissed being devoid of merit summarily. No costs.
Order Date :- 01.11.2012 AK