Allahabad High Court
Shree Ram Gupta vs Shafiquer Rahmand And Others on 27 January, 2010
Equivalent citations: 2010 (3) ALL LJ 85, 2010 A I H C 2095, AIR 2010 (NOC) (SUPP) 211 (ALL.), (2010) 3 CIVILCOURTC 274, (2010) 110 REVDEC 166, (2010) 2 ADJ 358 (ALL), (2010) 79 ALL LR 158, (2010) 2 ALL WC 2097, (2011) 1 CURCC 245, (2010) 80 ALL LR 37, (2010) 1 ALL RENTCAS 520
Author: Rajes Kumar
Bench: Rajes Kumar
RESERVED.
CIVIL REVISION NO. 482 OF 2009
Shree Ram Gupta v. Shafiquer Rahman & others.
..............................
Hon'ble Rajes Kumar, J.
This revision is directed against the order of the Judge, Small Causes Court dated 3.10.2009 by which he has rejected the amendment application filed by the petitioner, who was defendant in the suit.
The respondent filed S.C.C. Suit No. 58 of 2004 for ejectment and arrears of rent in which the petitioner was defendant no. 1. The petitioner filed the written statement and contested the case. It appears that evidence of both the parties have been closed on 10.7.2007 and 26.7.2007 was fixed for hearing. Further an application under Order 15 Rule 5 C.P.C. was moved, which has not been replied by the defendants. On 25.1.2008 the petitioner-defendant moved an application seeking permission to deposit rent of Rs. 20,000/-, which has been allowed on 28.1.2008 and thereafter a date was fixed for disposal of the application under Order 15 Rule 5 C.P.C. On 2.4.2008, defendant no. 2 Shree Kant Gupta, filed amendment application which has been rejected on 7.8.2008. Shree Kant Gupta filed Revision No. 385 of 2008 before this Court against the said order dated 7.8.2008 which has been rejected by this Court on 20.10.2008. Thereafter, on 2.2.2009, the petitioner-defendant no. 1, Shree Ram Gupta filed amendment application. The said amendment application has been rejected by the impugned order. The court below has held that the amendment application has been filed after one year seven months from the date of the close of evidence just to delay the proceeding. It has been further observed that the amendment application has been filed by the petitioner after rejection of the earlier amendment application filed by defendant no. 2. The amendment application has been rejected also on the ground that the petitioner-defendant no. 1 by way of amendment intended to resile with the earlier admission and the pleadings taken in the written statement. On these grounds it has been held that the amendment application was moved to delay the proceeding with mala fide intention.
Heard Sri S.C. Tiwari, learned counsel for the applicant, and Sri Saurabh Srivastava appearing on behalf of the respondents.
Learned counsel for the petitioner submitted that by the amendment the applicant has raised the plea that the construction of the premises in dispute was made prior to 1972 and, therefore, Act No. 13 of 1972 was applicable and, therefore, the S.C.C. Suit filed was not maintainable. This plea is necessary to adjudicate the issue and, therefore, ought to have been allowed. He submitted that the apex Court in the case of Andhra Bank v. ABN Amro Bank N.V. and Ors. reported in 2007 (3) ARC 410 has held that the delay is no ground for refusing the prayer of amendment. He further submitted that defendant no. 2 had earlier moved the application raising the plea that during pendency of the proceeding, 2 on the intervention of the neighbours, the dispute has been settled between the parties and, according to which, the plaintiff-landlord has received the rent in cash upto December, 2007 and agreed to withdraw the suit and when he refused to withdraw the suit a sum of Rs. 20,000/- was deposited on 12.2.2008 in the court. It was pleaded that since the above facts have come into existence after filing of the written statement, such amendment was liable to be allowed. However, the amendment has been rejected on the ground that it has been moved after nine months from the date of the close of the evidence.
Learned counsel for the respondents submitted that the amendment application was moved to delay the proceeding with mala fide intention. He submitted that the evidence was closed on 10.7.2007 of both the parties and 26.7.2007 was fixed for hearing. Thereafter, for one reason or the other, the defendant had tried to delay the proceeding and when the amendment application filed by defendant no. 2 has been rejected with the new plea the amendment has been moved by the petitioner-defendant no. 1. He submitted that since the application is not bona fide the same should not be entertained and in support of it he relied upon the recent decision of the apex Court in the case of Revajeetu Builders & Developers v. Narayanaswamy & Sons & others reported in 2009 (3) ARC
502. He further submitted that by the amendment such pleading has been taken which amounts to resiling from the admission made in the original written statement, which is not permissible. In support of the contention he relied upon the decision of the apex Court in the case of Gautam Sarup v. Leela Jetly and others reported in (2008) 7 S.C.C. 85. He submitted that on the aforesaid facts and circumstances the trial court has rightly rejected the amendment application.
Having heard learned counsel for the parties I have perused the impugned order and given my anxious consideration to the rival submissions.
Admittedly, the evidence of both the parties have been closed on 10.7.2007 and 26.7.2007 was fixed for hearing. The present amendment application has been moved by petitioner-defendant no. 1 on 2.2.2009 after one year seven months from the date of closure of the evidence. No proper reason has been given for such delay. It is also necessary to mention that defendant no. 2 has moved the amendment application on 2.4.2008 which has been rejected by the trial court on 7.8.2008 against which Revision No. 385 of 2008 has been dismissed on 20.10.2008. While dismissing the revision this Court observed as follows :
"The court below finding that the evidence was already over on 10.7.2007 and the case was fixed for hearing on 26.7.2007 and the defendant-tenant was seeking adjournment after adjournment and the application for amendment having been moved after nine months of the evidence being over was not liable to be allowed and accordingly, rejected the same.
In the facts and circumstances of the case, where the amendment was sought in the written statement after nine months of close of evidence of the parties and the case being fixed for hearing and disposal, no illegality appears to have been committed by the Court below in rejecting the amendment application.3
The revision accordingly, fails and stands dismissed."
In the circumstances and for the reasons given by this Court in rejecting the amendment application moved earlier, the present amendment application cannot be entertained. It appears that the amendment application has not been moved bona fidely and has been moved with a mala fide intention to delay the proceeding. the apex Court in the case of Revajeetu Builders & Developers (supra) held as follows :
"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 this 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 amendment s if a fresh suit on the amended claims would be barred by limitation on the date of application.
68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.
70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bonafide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
The trial court has recorded categorical finding that by the amendment the defendants intended to resile with the admission made in the written statement, which is not permissible in law. The apex Court in the case of Gautam Sarup (supra) has held that under Order 6 Rule 17 the party cannot be permitted to resile from the admissions made in the earlier written statement by moving amendment application.
It is also necessary to examine Order 6 Rule 17 which reads as follows :
"The court may at any stage of the proceedings allow either party to alter or amend his pleading 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 :4
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 present case the evidence of both the parties have been closed and the suit was fixed for final hearing and, therefore, the trial had commenced. No reason has been given that inspite of the due diligence the applicant could not have raised the plea taken in the amendment application in the earlier written statement. In the circumstances, the petitioner is not entitled for the benefit of the proviso to Order 6 Rule 17.
On the facts and circumstances stated above, I am of the view that the trial court has rightly exercised its discretion in not entertaining the amendment application. In the result the revision fails and is dismissed.
Dated : 27.1.2010.
PG.