Allahabad High Court
Amreesh Kumar vs Jaya Wal And 5 Others on 19 January, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 302 of 2018 Petitioner :- Amreesh Kumar Respondent :- Jaya Wal And 5 Others Counsel for Petitioner :- Ambrish Chandra Pandey Counsel for Respondent :- Siddhartha Srivastava Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ambrish Chandra Pandey, learned counsel for the defendant-petitioner petitioner and Sri Siddhartha Srivastava, learned counsel for the plaintiffs-respondents.
2. This petition under Article 227 of the Constitution of India has been filed praying to set aside the order dated 5.12.2017 in SCC Revision No.10 of 2017 (Jaya Wal and others Vs. Ashwani Kumar and another), passed by the Court of Additional District Judge, Court No.2, Bareilly whereby the Amendment Application being paper No.14-C and the application for additional evidence being paper No.13-C filed by the plaintiff-respondents, have been allowed.
Facts:
3. Briefly stated facts of the present case are that undisputedly plaintiffs-respondents are owner and landlord of House No.407-D, Shivpuri, Mohalla-Kunwarpur, Bareilly, in which Sri Arendra Pal Saxena was the tenant at monthly rent of Rs.45/-. After his death the tenancy was succeeded by his two sons, namely, Sri Ashwani Kumar and Sri Amreesh Kumar (the defendants). The plaintiffs-respondents instituted a S.C.C. Case No.81 of 1999 (Pradeep Wal and others Vs. Ashwani Kumar and another) which was dismissed by judgment dated 16.2.2017, passed by the Judge Small Causes Court, Bareilly. Aggrieved, the plaintiffs-respondents filed S.C.C. Revision No.10 of 2017 (Jaya Wal and others Vs. Ashwani Kumar and another) which is pending in the Court of Additional District Judge IInd, Bareilly. During pendency of the Revision the plaintiff-respondents came across two sale deeds evidencing that the defendant No.1 had purchased and acquired in vacant state a residential building being House No.34 AT/06, Shastri Nagar, Bareilly. They also came across the evidences of electric connection etc. taken by the defendants-petitioner in the aforesaid house. The defendant No.2 has also acquired a house in vacant state at Nadausi Parsakhera, Bareilly. Therefore, the plaintiffs-respondents filed an application 13-C for taking the additional evidence and the application 14-C for necessary amendment in the plaint by adding paragraphs 8A, 8B, 8C, 8D and 8E. They intended to take the stand that since the defendants have acquired residential houses in vacant position, therefore, they are not entitled to the protection of Section 20(4) of U.P. Act 13 of 1972.
4. The aforesaid two applications 13-C and 14-C have been allowed by the impugned order dated 5.12.2017, passed by the Court of Additional District Judge, Room No.2, Bareilly, in S.C.C. Revision No.10 of 2017. Aggrieved with this order, only the defendant No.2 has filed the present petition.
Submissions:
5. Learned counsel for the petitioner submits that the impugned order is wholly arbitrary and illegal inasmuch as the additional evidences filed by application 13-C were well within the knowledge of the plaintiffs-respondents during pendency of the suit and as such neither the additional evidences could have been admitted nor the amendment could have been allowed by the Revisional Court. He further submits that the scope of revision is limited. Revisional power can be exercised only where the Court has failed to exercise its jurisdiction vested in it or exercised its jurisdiction not vested in it or exercised the same illegally and in material irregularities. Therefore, the pleadings of the parties can not be permitted to be improved upon by way of amendment except in very exceptional circumstances. In support of his submissions he relied upon a decision of this Court in the case of Mohammad Akbar Vs. Shahina Khatoon and others, 2014 (11) ADJ 498 (paragraph 17).
6. Sri Siddhartha Srivastava, learned counsel for the plaintiffs-respondents supports the impugned order.
Discussion and Findings:
7. I have carefully considered the submissions of learned counsel for the parties and perused the record of this petition before me.
8. Undisputedly, the plaintiffs-respondents are the owner and landlord of the disputed house of which the defendants-petitioner are tenant. S.C.C. Suit No.81 of 1999, filed by the plaintiffs-respondents was dismissed by the Judge Small Causes Court, Bareilly, vide judgment dated 16.2.2017. In paragraph 6 of the affidavit accompanying the application 13-C plaintiffs-respondents have stated that the defendant No.1 has acquired in vacant state a House at plot No.34 AT/06, Shastri Nagar, Bareilly and the defendant No.2 has acquired a house at Nadausi Parsakhera, Bareilly, which came to the knowledge of the plaintiffs-respondents after the impugned judgment dated 16.2.2017 was passed by the Judge Small Causes Court. In paragraphs 7,8, 9 and 10 of the affidavit he referred to the information obtained under R.T.I. Act from the Executive Engineer E.U.D.D.-II, Bareilly and S.D.O. Electric Department, Bareilly, regarding electric connection obtained in the name of Suman Rana W/o Ashwani Kumar (defendant- No.1). He also obtained copy of voter list with respect to voters residing in the house situate at Shastri Nagar in which the name of the defendant-petitioner and his other family members are recorded. He also obtained photographs of the house. In his application 14-C, he sought amendment in the plaint as under:
"8A That defendant No.01 Ashwani Kumar as well as his family members have acquired a residential house at plot No.34 A.T./06 Shastri Nagar, Bareilly.
8B. That O.P. No.02 Amrish Kumar has also acquired a residential house/building in vacant state at Nadausi Parsakhera, Bareilly.
8C. That both the above houses situated at Shastri Nagar and Nadausi Parsakhera Bareilly have been acquired by defendant No.01 & 02 respectively in vacant state. Both residential houses are situated within Nagar Nigam Bareilly limit.
8D. That the names of defendant No.01 and his family members are given in the voter list of the house situated at Shastri Nagar Bareill.
8E. That as the defendant No.01 & 02 acquired the above residential houses in vacant state so they are not entitled to the benefit of Section 20(4) of U.P. Act 13 of 1972."
9. In the impugned order dated 5.12.2017 the Revisional Court has recorded a finding that in the absence of knowledge of the aforesaid two houses, the plaintiffs-respondents could not make the pleadings and file evidences. A finding has also been recorded in the impugned order that the defendants have not denied that they have acquired the houses in question in vacant state.
10. The proviso to Section 20(4) of U.P. Act 13 of 1972 provides that the provisions of sub-Section 4 of Section 20 shall not apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state or, has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. The acquisition of houses by the defendants in vacant state as mentioned in the amendment application have neither been disputed by the defendants before the Revisional court nor it has been disputed before this Court. On a specific query made by this Court from learned counsel for the defendants-petitioner as to whether the defendants have acquired houses in the same City i.e. City Bareilly, in a vacant state, the learned counsel replied that it has been acquired but he could not tell the date of acquisition.
11. Order VI Rule 17 C.P.C. provides that the Court may at any stage of the proceeding 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 question 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 inspite of "due diligence", the party could not raise the matter before the commencement of trial.
12. The facts of the case as briefly noted above clearly shows that the acquisition of the aforesaid two houses by the defendants in vacant state was well within their knowledge and yet they had suppressed these facts. The plaintiffs-respondents gained the knowledge about the acquisition of the aforesaid two houses by the defendants at a subsequent point of time. According to them they came to know about it after the judgment of the trial court. The defendants have neither disputed before the Revisional Court nor before this court that the houses as aforesaid have been acquired by them in a vacant state. The information with respect to the electric connection of the defendants in the aforesaid house could be obtained by the plaintiffs-respondents after they applied for it before the appropriate authority under the R.T.I. Act. The photographs of the houses bearing name plate of the defendants were also taken which were filed as additional evidence alongwith list. Thus, the amendment application filed by the plaintiffs-respondents is bonafide and it does not cause injustice to the defendant-petitioner and also does not affect the rights of the defendant-petitioner. It has been well settled by Hon'ble Supreme Court in the case of Peethani Suryanarayana and Anr. Vs. Repaka Venkata Ramana Kishore and Ors., 2009 (11) SCC 308 that Court holds the power to allow amendment provided; (i) the application is bonafide; (ii) amendment does not cause injustice to the other side and (iii) amendment does not affect the right(s) already accrued to the other side.
Object of the proviso to Order VI Rule 17 C.P.C.:
13. In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement was bonafide and sustainable at the appellate stage of the second original suit stage or not, it is useful to refer to the relevant provisions of Order 6 Rule 17 C.P.C. 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."
14. This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.
15. The proviso to Order VI Rule 17 C.P.C. specifically provides that no application for amendment shall be allowed after the trial is commenced unless the court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial.
16. In the case of Chander Kanta Bansal Vs. Rajinder Singh Anand 2008(5) SCC 117 Hon'ble Supreme Court considered the meaning of the word "due diligence" used in the proviso to Order VI Rule 17 C.P.C. and held as under:
"15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.
16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.
17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness.
18. As rightly referred to by the High Court in Union of India Vs. Pramod Gupta 2005 (12) SCC 1 this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings."
(Emphasys supplied by me)
17. In the case of J. Samuel & others Vs. Gattu Mhesh & others (2012) 2 SCC 300, Hon'ble Supreme Court explained the scope of the words "due diligence" used in proviso to Order VI Rule 17 and held as under:
"19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term `due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.
20. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.
21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.
(Emphasys supplied by me)
18. The post trial amendment can be allowed under the proviso to Order VI Rule 17 C.P.C. if the Court comes to the conclusion that inspite of due diligence the party could not raise the matter before the commencement of trial. The phrase "due diligence" means reasonable diligence. It means such diligence as a prudent man would exercise in the conduct of his own affairs. In the present set of facts the plaintiffs-respondents have satisfied the court below that despite due diligence they could not raise the matter of acquisition of two houses in vacant state by the defendants, before the trial court.
19. In view of the above discussion, since the condition as provided under proviso to Order VI Rule 17 C.P.C. has been satisfied by the plaintiffs-respondents and as such the impugned order allowing the amendment application, can not be said to suffer from any illegality or arbitrariness.
20. For the reasons aforestated, the provisions of Order XLI Rule 27 (aa) of C.P.C. stands attracted on the facts of the present case inasmuch as the plaintiffs-respondents have filed additional evidence to establish acquisition of two houses in vacant state by the defendants which was not within their knowledge at the time when the decree appealed against was passed and, therefore, they could not produce it at earlier point of time. On a specific query repeatedly made by this Court to the learned counsel for the defendant-petitioner as to whether the houses in question were acquired by the defendants in vacant state prior to institution of the S.C.C. Suit or during its pendency but, he had not answered this query.
21. Considering the facts and circumstances and the reasons as stated above, I do not find any legal infirmity in the impugned order whereby the applications for additional evidence and amendment in the plaint have been allowed.
22. The judgment of this Court in the case of Mohammad Akbar (supra) relied by learned counsel for the defendant-petitioner is distinguishable on facts of the present case. From paragraph 12 of the said judgment it appears that the petitioner in that case sought amendment in the pleadings to the extent that the shop in question is situate near Kotawali Dehat which is within 3 Kms. from Nagar Palika Parishad, Nagina. It was no where stated that Nagar Palika Parishad Nagina was notified after filing of the written statement. The suit was filed in the year 2002 and it was decreed in the year 2011, while the petitioner had filed written statement in the suit on 29.10.2002. No effort was made by him to amend the written statement during pendency of the suit. It is only after filing the revision in the year 2014 that he sought amendment in the written statement. On these facts the rejection of amendment application was upheld. Another ground for upholding the rejection of amendment application has been noted in paragraph 14 (in Mohammad Akbar's case) that before the Judge Small Causes Court the petitioner admitted that the shop in question is outside the purview of U.P. Act 13 of 1972 but by virtue of amendment, he wants to withdraw his admission by stating that the shop in dispute is under the purview of the Nagar Palika Parishad Nagina. It was also found that the amendment sought was totally unnecessary to decide the real controversy as everything was well on record regarding the applicability of U.P. Act 13 of 1972 on the shop in dispute. Even in paragraph 17 of the judgment in Mohammad Akbar's case (supra) this court has clearly observed that the amendment is permissible at the revisional stage in exceptional circumstances.
23. In my view, the facts of the present case as briefly noted above, clearly comes within the exception as provided in the proviso to Order VI Rule 17 C.P.C. for amendment. Thus, the judgment in the case of Mohammad Akbar (supra) relied by the learned counsel for the petitioner is of no help to him.
24. In view of the above discussion, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed.
Order Date :- 19.1.2018/vkg