Allahabad High Court
Abdul Ahmad vs Haq Nawaz Ahmad on 10 August, 2016
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
RESERVED
Case :- MATTERS UNDER ARTICLE 227 No. - 2690 of 2016
Petitioner :- Abdul Ahmad
Respondent :- Haq Nawaz Ahmad
Counsel for Petitioner :- Salil Kumar Rai
Counsel for Respondent :- Arpit Agarwal
Hon'ble Mrs. Sunita Agarwal,J.
By means of the present petition, the petitioner is challenging the order dated 23.01.2016 passed by the Additional District judge, Court no.1, Pilibhit in Small Causes Case No.03 of 2013 (Haq Nawaz Ahmad Vs. Abdul Ahmad). Brief facts giving rise to the present petition are:-
The SCC case no.03 of 2013 under section 20(2) (a) of U.P. Act No.13 of 1972 has been filed for eviction of the defendants on the ground of default in payment of rent and demanding arrears of rent. Written statement was filed by the petitioner on 08.04.2013, the suit has proceeded for evidence. At the stage of evidence an application under Order VI Rule 17 of the Code of Civil Procedure was filed on 03.11.2015 with a prayer to amend the written statement. The Court below has rejected the application on 23.01.2016 on the ground that the amendment has been sought in order to delay the proceedings and to avoid cross-examination of the plaintiff. It is further recorded by the Court below that by means of the amendment the petitioner seeks to withdraw the admission made by him in the written statement. Aggrieved by this order the present petition has been filed.
Learned counsel for the petitioner vehemently submits that there was no bar for the defendant to withdraw his admission, the amendment in the written statement stands on a different footing than the amendment in the plaint. The delay cannot be taken as a ground for refusal of prayer for amendment in the written statement. The amendment was necessary for deciding the real controversy between the parties in suit and moreover no prejudice will cause to the plaintiff on account of the amendment sought by the petitioner. The question of relationship of landlord and tenant between the parties is the real issue to be decided by the Court below. The suit is at the stage of evidence and as such the proviso to Order VI Rule 17 of the Code of Civil Procedure is not attracted. The plaintiff has enough opportunity to rebut the evidence led by the defendant.
He further submits that the rejection of the amendment application may not come in the way of the petitioner in raising the dispute regarding relationship of landlord and tenant at the time of final hearing in the suit. The tenant can resile from the relationship at any stage of the suit and for this reason the amendment could not have been rejected. Reliance is placed upon the judgement of Apex Court in Usha Balashaheb Swami and Ors. Vs. Kiran Apaso Swami and Ors.1 and Sushil Kumar Jain Vs. Manoj Kumar and Anr, 2 in support of his above noted submission.
On the other hand, learned counsel for the respondent urged that the rejection of amendment application is a "case decided" within the meaning of Section 25 of the Provincial Small Causes Court Act, 1887 which is akin to Section 115 of the Civil Procedure Code. The rejection of amendment application refusing to allow the tenant to deny the landlord- tenant relationship is for the reason that the tenant cannot withdraw his admission in the written statement at the stage of evidence. On the issue of landlord-tenant relationship, now principle of estoppel would apply as the landlord-tenant relationship is established from the admission of the defendant in the written statement. The order of rejection of the amendment application, therefore, resulted in deciding the issue of landlord-tenant relationship between the parties, which would come within the meaning of expression "case decided" under section 25 of the Provincial Small Causes Court Act.
Against such order, only a revision is maintainable under the said provision. This petition under Article 227 of the Constitution of India is not maintainable as such. Reliance is placed upon the judgement of Apex Court in Shiv Shakti Coop. Housing Society vs M/S. Swaraj Developers & Ors,3 wherein it is held that wherein an order in favour of the parties applying for revision would give finality to the suit or other proceeding, the revision is maintainable. Further reliance is placed upon the judgement of Full Bench of this Court decided on 15.12.1967 in the case of Rama Shanker Tiwari Vs. Mahadeo and others4 to submit that the order refusing or allowing an amendment is a "case decided" within the meaning of Section 115 of the Civil Procedure Code. Further reliance is also placed upon the judgement of Apex Court in Transmarine Corporation and others vs. Zensar Technologies Ltd and others,5, Sambhavnath Digambar Jain Vs. Mohanlal and others,,6 Mukhtar Ahmad Vs. Sirajul Haq and others,7, Manni Lal Gupta Vs. Waqf. Haji Inayat Hussain and another, 8.
On the merits of the order of rejection of the amendment application, it is submitted by the learned counsel for the respondent that the trial had commenced and the defendant has failed to establish before the trial Court that inspite of his due diligence, the matter which was sought to be pleaded by way of amendment could not be pleaded by him before the commencement of the trial i.e. at the time of filing of the written statement. The amendments are highly belated and have rightly been rejected by the trial Court.
In rejoinder, learned counsel for the petitioner placed reliance upon the judgement of Apex Court in the case of Prem Bakshi and others Vs. Dharam Dev and others,9 to submit that the order allowing the amendment application cannot be said to be have finally decided the case. It would not fall within clause (a) of sub-section (1) of Section 115 of Civil Procedure Code and, therefore, the petition under Article 227 of the Constitution of India is perfectly maintainable. He further submits that even otherwise, no prejudice has been caused to the plaintiff as he had opportunity to lead evidence so as to establish the landlord tenant relationship. Merely because the plaintiff has closed his evidence, it cannot be concluded that he would not get opportunity to say anything further. Even, otherwise the plaintiff has to establish that the landlord-tenant relationship between the parties exists and he is the actual landlord of the suit premises. For maintaining a suit for eviction of the tenant, the burden is upon the landlord to prove that there exists landlord tenant relationship between the parties and the person whose eviction is sought is his tenant and he is entitled to the decree of eviction with respect to the premises in question.
Having heard learned counsel for the parties and perused the record. Before coming to the legal position relating to amendment of written statement, it would be useful to refer to certain dates and the pleadings of the parties on record.
In the eviction suit, a specific assertion has been made by the plaintiff/respondent in paragraph no.1 of the plaint that he is owner of the suit premises, the description of which has been given in the said paragraph. The defendant is his tenant at the rate of Rs.1500/- per month. In the written statement, a vague denial has been made with regard to the averments in paragraph no.1 of the plaint. Further in paragraph no.9, it is stated by the defendant/petitioner that he was in occupation of the suit premises as a tenant since 2002 at the rent of Rs.200/- normal per month. It is further stated that a lease deed was executed between the defendant and the father of the plaintiff. It is also stated that after death of father of the plaintiff, rent was being tendered to the plaintiff but no rent receipt was given.
In the amendment application filed on 03.11.2015, after paragraph no.15 of the written statement, the paragraph which is sought to be added as paragraph no.15-A is as under:-
"15अ- यह की वादी वाद पत्र में प्रश्नगत मकान का भू- स्वामी (Land Lord) नहीं है. उत्तरदाता प्रतिवादी ने प्रश्ननगत मकान स्व तौहीद अहमद जो की प्रश्नगत मकान के (Landlord & Tenant) का कोई संबंध नहीं है जिस कारण उपरोक्त वाद श्रीमान जी के न्यायलय में चलने योग्य नहीं है, न्यायलय के उपरोक्त वाद सुनने का क्षेत्राधिकार प्राप्त नहीं है. वाद वादी सव्य निरस्त होने योग्य है."
Further paragraph no.15 of the written statement is also relevant for the present controversy and is quoted as under;-
"15.यह कि प्रश्नगत मकान का वादी तनहा स्वामी नहीं है जिस कारण वादी को उक्त वाद प्रस्तुत करने का कोई अधिकार नहीं है और वादी का वाद आदेश, नियम, सी. पी. सी. के प्राविधान से बाधित है"
The Court below after considering the amendments sought by the petitioner came to the conclusion that by means of the proposed amendment, admission in paragraph no.9 of the written statement is sought to be withdrawn by the defendant. Such amendments cannot be allowed as it would materially prejudice the plaintiff.
The lease deed executed between the parties has been brought on record, the landlord-tenant relationship is established from the record. This apart, the defendant has delayed the proceedings and did not cross examine the plaintiff for a sufficient long time. He is misusing the process of the Court and therefore, the amendment application has been rejected with a cost of Rs.250/-.
Having perused the above noted material on record, this Court finds that there is clear admission of the petitioner with regard to the landlord-tenant relationship between him and the plaintiff. He has made categorical statement in this regard in paragraph no.9 of the written statement. Though the admission in paragraph no.9 of the written statement has not been withdrawn as the petitioner did not seek any such prayer in the amendment application, however, the averments in paragraph no.15-A which he sought to add in the written statement shows that he wants to plead that there was no landlord-tenant relationship between him and the plaintiff and, therefore, suit at the instance of the plaintiff could not be maintained. This amendment has been sought with further assertion that there was a typographical mistake in the written statement for correction of which, the amendments are necessary.
Looking to the pleading in paragraph no.9 and 15 of the written statement and paragraph no. 15-A of the amendment application, it cannot be said that the amendments are only in the nature of correction of typographical mistake occurred in the written statement. A categorical stand has been taken by the petitioner in paragraph no.9 of the written statement that there exists a lease deed establishing the relationship between the parties. The lease deed is also on record and the suit is at the stage of evidence. It is for the trial Court to decide on the basis of evidence of the parties as to whether there exists landlord-tenant relationship between them or not and further as to whether the petitioner is owner/landlord of the suit premises and can maintain the suit at his own instance.
All these question are still open to be decided by the trial Court on the basis of oral and documentary evidences of the parties. This Court without going into the merits of the pleadings of the parties specially in the written statement and the plaint comes to an irresistible conclusion that the amendments which the defendant wants to add are neither in the nature of inconsistent plea nor explanatory in nature. The amendments are in the nature of withdrawal of admission in the written statement that too after the evidence of the parties had commenced.
There is no quarrel about the preposition that the Court has to take a liberal view while dealing with the amendments of the pleadings and as far as possible shall lean in favour of the party who is seeking amendment. At the same time, while allowing such amendments in the written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff's case and cause irretrievable prejudice. If the amendments seeks to withdraw an important admission made in the written statement, such amendments are liable to be rejected.
Reference may be made to the Apex Court judgement in Heera Lal Versus Kalyan Mal,10 and similarly in Arundhati Mishra v. Sri Ram Charitra Pandey,11, wherein the Apex Court has held that where the defendant had denied the title of the plaintiff and set up his title as an owner with regard to the suit property, he cannot be allowed to take a plea of adverse possession by way of amendment. Though the pleas based on title and adverse possession are mutually inconsistent but latter does not began to operate until the former is renounced. The defendant never renounced his title as an owner and therefore, he cannot assert the plea of adverse possession which was available to him at the time of filing of the written statement. There was no explanation for the belated plea and as such the Court had refused to accept and therefore, the Apex Court has held that the High Court has erred in allowing the appeal.
The judgements relied upon by learned counsel for the petitioner are distinguishable in the fact of this cases in asmuch as, in both the cases namely Sushil Kumar Jain (supra) and Ushal Bala Saheb Swami (supra) it is held by the Apex Court that the amendment in the written statement was not for withdrawal of admission rather keeping the amendment intact something more was sought to be added. The contradiction and the confusion in the written statement was sought to be clarified.
As far as the plea regarding the maintainability of the present petition is concerned, this Court is of the view that in the instant case, the refusal of amendment would not fall within the meaning of "case decided" under section 25 of the Provincial Small Causes Court Act. The lis between the parties namely the landlord tenant relationship is still to be decided by the Court below on the basis of evidence of the parties. The Court below has examined the plea of the parties only to reach a conclusion as to whether amendments are necessary or malafide. Any observation made by it regarding merits of the averments in the written statement is not going to affect the rival claim of the parties in the suit.
The reliance placed upon the above noted judgements of the Apex Court and of this Court placed by learned counsel for the respondent in support of his plea is also misplaced. So far as the Full Bench judgement of this Court in Rama Shankar Tiwari (supra) is concerned, the same relates to unamended section 115 of the Civil Procedure Code which stood amended by U.P. Act No.14 of 2002.
For all the above noted reasons, this Court is not inclined to interfere in the rejection order of the amendment application passed by the trial Court. It is,however, open for the petitioner/defendant to dispute the landlord-tenant relationship between him and the plaintiff by leading cogent evidence on his turn. It goes without saying that the issue of ownership of the plaintiff to the suit property and relationship of the parties are vital issues in a suit for eviction of the defendant on the ground of default in payment of rent. The trial Court shall, therefore, decide the suit independently without being influenced by any of the observation made above and also the observations made in the order dated 23.01.2016 passed on the amendment application.
With the above observations and directions, the petition is dismissed.
Order date:- 10.8.2016 Himanshu