Allahabad High Court
Rakesh Kumar Upadhyay vs Mandir Hanumanji Maharaj Sarajanik ... on 7 December, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- MATTERS UNDER ARTICLE 227 No. - 2823 of 2020 Petitioner :- Rakesh Kumar Upadhyay Respondent :- Mandir Hanumanji Maharaj Sarajanik Nyas Virajman And 2 Others Counsel for Petitioner :- Shiv Om Vikram Singh Chauhan,Vishnu Gupta(Senior Adv.) Counsel for Respondent :- Ashutosh Yadav Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Vishnu Gupta, learned Senior Advocate assisted by Shri Shiv Om Vikram Singh Chauhan, learned counsel for the petitioner and Shri Ashutosh Yadav, learned counsel for the respondents.
By means of present writ petition, the defendant-petitioner is assailing the validity of order dated 28.05.2019 passed by learned Civil Judge (Senior Division) Hathras/Small Causes Court in SCC Revision no.11 of 2007 by which the defendant's amendment application (71-C) was rejected and revision against the same was also dismissed vide order dated 29.01.2020 passed by learned District Judge, Hathras in SCC Revision no.15 of 2019 (C.N.R. no.U.P.H.T.010045092019).
Brief facts giving rise to the present dispute are as follows:-
Shri Girdhari Lal Lohia arrayed as plaintiff no.2/respondent no.2 let out shop no.811/1 Gali Hanuman, Hathras to the defendant-petitioner. The respondents have filed SCC Suit no.11/2007 (Mandir Hanumanji Maharaj and another vs. Rakesh Kumar Upadhyay for eviction of petitioner after determining tenancy and for recovery of arrears of rent and damages. The defendant-petitioner has filed in written statement in the year 2009, wherein, it is alleged that the rate of rent at the time of filing the suit was Rs.633/- per months and the plaintiffs-respondents wrongly claimed that the defendant-petitioner was also liable to pay house tax and water tax in addition to Rs.633/- per month and 10% increase of rent every year as there was no such agreement to that effect is entered between the parties.
In the said proceeding, the defendant-petitioner has moved an amendment application dated 15.04.2019. While moving the amendment application, the defendant-petitioner had claimed that due to mistake/oversight reference of agreement dated 28.09.2002 entered between the plaintiff and defendant, whereby, the landlord accorded permission to the tenant to spend money in repairing of the shop, which was liable to be adjusted in the rent, could not be averred while filing the written statement. Plaintiff-respondent filed objection against the amendment application and taken categorical stand that the same is belated and once the trial has commenced, the said application cannot be entertained and just to delay the proceeding the same had been preferred.
Learned JSCC/Civil Judge (Senior Division), Hathras by the order dated 28.05.2019 rejected the amendment application on the ground that non furnishing of an agreement dated 28.09.2002 cannot be treated as human error and the same amendment would change the nature of the suit. The said order has been approved by the Revisional Court vide order dated 29.01.2020 passed in SCC Revision no.15 of 2019.
Shri Vishnu Gupta, learned Senior Advocate assisted by Shri Shiv Om Vikram Singh Chauhan, learned counsel for the petitioner vehemently contended that due to oversight and mistake, the said ground could not be mentioned in the written statement and the agreement dated 28.09.2002 could not be averred. The amendment application was bona-fide and more-so there was no change in nature of defence but in most arbitrary manner, the revisional court has rejected the amendment application merely on the ground of delay and wrongly interpreted that the hearing of the suit had already commenced, therefore, the amendment application was barred by the proviso to Order VI Rule 17 CPC. In support of his submission, he has placed reliance on the order-sheet and submits that suit proceeding has not yet commenced and more-so neither the plaintiff's witnesses were examined nor any cross-examination on the affidavits filed by the plaintiff's witnesses has commenced. Reliance has also been placed on the order passed Baldev Singh and others vs. Manohar Singh and another 2006 (6) SCC 498; Kuldeep Kumar and another vs. Sri Navin Kumar and another 2017 All. C.J. 2517 and Gurbakhsh Singh and others vs. Buta Singh and another 2018 6 SCC 567.
Per contra, Shri Ashutosh Yadav, learned counsel for the contesting respondent has vehemently opposed the writ petition and submits that the amendment application may be accepted in case the same is preferred with bona-fide intent. In the present matter, the suit has been filed in the year 2007 and written statement has been filed in the year 2009 itself and after a long span of time, through an amendment application filed in the year 2019 under Order VI Rule 17 CPC, the defendant-petitioner has sought amendment in the written statement and the defendant tried to rely upon alleged agreement dated 20.06.2004. Even though the said proceeding had already expedited by the Hon'ble Court and more-so no cogent reason were assigned or disclosed under what circumstances the agreement dated 28.09.2002 could not be averred in the written statement, therefore, the same has rightly been rejected on the pretext that it would change the nature of the suit. The proviso of Order VI Rule 17 CPC prevents an application for amendment in the pleading from being allowed specially after the trial has commenced, unless the Court comes to a conclusion that in spite of the due diligence, the party could not raise the matter before the commencement of the trial. In such a situation, he submits that the proviso, to an extent, curtails absolute discretion to allow amendment at any stage and therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. In this backdrop, he submits that after considering the aforesaid provision, the order impugned has been passed the same is rightly been upheld by the Revisional Court and as such, the writ petition is liable to be dismissed.
As mentioned above, the suit was filed on 17.10.2007 and written statement has been filed in the year 2009. The amendment application was filed by the defendant on 15.04.2019 to amend the written statement claiming therein that by the oversight and mistake the some important facts were not included in the written statement and due to mistake reference of agreement dated 28.09.2002 entered between the plaintiff and defendant by which the landlord gave permission to tenant to spend money in repairing of the shop, which would eventually be adjusted in rent, the said fact could not be averred.
The leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The legislature has consciously introduced the provizo to Order VI Rule 17 CPC which prevents an application for amendment in the pleading from being allowed specially after the trial has commenced, unless the Court comes to a conclusion that in spite of the due diligence, the party could not raise the matter before the commencement of the trial.
The Court has the occasion to peruse the application dated 15.04.2019. While moving the application, nowhere any reason has been averred under what circumstances in case there was an agreement, the same could not be averred in spite of due diligence. The evidences have been adduced by the parties in the month of January 2019. The Revisional Court has clearly proceeded to observe in its order that the trial has already commenced and has placed reliance on the law laid down by Hon'ble the Apex Court in M. Revanna vs. Anjanamma (Dead) by LRs and others AIR 2019 SCC 940. Relevant paragraphs 5 and 6 are quoted as under:-
"5. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.
6. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendant Nos. 4 to 6 were not made parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22.04.1993, which was within one or two months of the filing of the suit. The compromise petition came to be rightly dismissed by the High Court in RFA No. 297/1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, then Plaintiff Nos. 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 01.09.2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the Trial Court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiff Nos. 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiff Nos. 1 to 5 came to know about the partition deed dated 18.05.1972 (Panchayat Parikath) on 22.04.1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross examine PW1 thoroughly and took more than five years' time to get the examination of PW2 completed, and only thereafter filed an application seeking amendment of the plaint on 01.09.2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by virtue of the application for amendment of pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all."
After considering various decisions of the Hon'ble the Apex Court relating to amendment of the pleading a Division Bench of this Court in the case of Devendra Mohan and others vs. State of U.P. and others 2004 (1) ARC 504 was of the view that "the amendment is not permissible if the very basic structure of the plaint if changed or amendment itself is not bona fide. In case the facts were in the knowledge of the party at the time of presenting the pleadings, unless satisfactory explanation is furnished for not introducing those pleadings at the initial stage, the amendment should not be allowed."
Having regard to the totality of the facts and circumstances of the case, the Court is of the considered opinion that the application for amendment of the written statement is not only belated but also not bona-fide and in case it would be allowed, the same would change the nature and character of the defence taken by the defendant-petitioner. The amendment sought by the defendant-petitioner is not a subsequent development. There is no satisfactory explanation as to why the said agreement could not be placed before the Court below. Even there is no whisper of the said agreement since filing of the suit till the date the said amendment has been filed whereas the defendant-petitioner cannot claim that the agreement was not in his knowledge.
In view of the above, the relief sought by the petitioner-defendant cannot be accorded as the same would delay the suit proceeding and would lead to a travesty of justice. The orders passed by the Trial Court as well as the Revisional Court is confirmed. The Writ Petition fails and is hereby dismissed.
Order Date :- 7.12.2020 A. Pandey