Himachal Pradesh High Court
Shri Surinder Mohan vs Shri Raj Kumar Mehra & Anr on 15 March, 2018
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CR No. 17 of 2017.
.
Date of decision: March 15, 2018.
Shri Surinder Mohan. ......Petitioner.
Versus
Shri Raj Kumar Mehra & anr. .....Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. R.K Bawa, Senior Advocate with
Mr. Ajay K. Sharma, Advocate.
For the respondents : Mr. Bhupender Gupta, Senior
Advocate with Mr. Naresh Sharma,
Advocate.
Dharam Chand Chaudhary, J. (Oral)
Order Annexure P-1 passed by learned Rent Controller, Court No. III, Shimla in an application under Order 6 Rule 17 CPC registered as CMA No. 75-6 of 14 is under challenge in the present petition. Learned Rent Controller below has dismissed the application and declined the amendment sought to be made by the petitioner (hereinafter referred to as the respondent-tenant) in reply to the rent petition initially filed.
1Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 22. The respondents herein are the owners of a shop in building No. 84, the Mall Shimla. The building is non-residential.
.
The shop was rented out to one Trilok Chand, father of respondent-tenant Surinder Mohan for doing tailoring business.
The respondent-tenant is presently doing the tailoring business in the shop under the name and style M/S Bhagat sons. The demised premises allegedly is bonafidely required by the petitioners-landlords for expansion of their business. They are running cloth business in this very building under the name and style M/S Nathu Ram and Sons. Adjoining thereto is another shop occupied by Shri Raman Jain. The petitioners-landlords are also running business of readymade garments under the name and style "M/S John Raymond Bright" in a part of the floor situated immediately below Mall Road level. The demised premises and another shop adjoining thereto being situated in the heart of town are stated to be most appropriate and convenient to the petitioners-landlords for expansion of their existing business. The petitioners-landlords allegedly are not occupying any other premises owned by them in the Urban Area of Shimla nor vacated any such premises in the Urban area without sufficient cause within five years of the institution of the petition. The floor above the demised premises allegedly is being used by them for residential purposes. Their requirement, as such, is stated to be bonafide. Besides the respondent-tenant ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 3 is claimed to be in arrears of rent, therefore, his eviction from the demised premises has been sought on the ground of personal .
bonafide requirement and also he being in the arrears of rent.
3. In reply the respondent-tenant has raised the question of maintainability of the petition and also that all legal heirs of deceased tenant Trilok Chand have not been impleaded as respondents in the petition. On merits, while denying the contentions in the rent petition qua the demised premises bonafidely required by the petitioners-landlords, it has been submitted that not the petitioners but it was late S/Shri Roshan Lal and Raj Kumar were running business under the name and style of M/S Nathu Ram and Sons and also M/S John Raymond Bright in the shop at Mall Road level. Late Shri Roshan Lal later on shifted to Delhi. Recently they occupied two offices behind the shop and another shop after removing the partition. They also took the second shop adjoining to the first shop and removed the partition between the two and then merged the office at the back of the second shop by removing its partition.
In this way a big huge shop wherein business of cloth and readymade garments is being carried out by them under the name and style of Nathu Ram and Sons and M/S John Raymond Bright. It is also denied that the demised premises are situated in the heart of town, hence more appropriate and convenient to the petitioners-landlords for running the business. It is also ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 4 denied that one shop has been divided into three parts by them out of one is with them, another with respondent-tenant and the .
third one with Raman Jain. The petitioners-landlords have nothing to do with the shops in the occupation of the respondent-
tenant and Raman Jain. The tenants in the demised premises were late Shri Trilok Chand and late Shri Devi Chand. The petition without impleading all the legal heirs of said Shri Trolok Chand and Shri Devi Chand is stated to be not maintainable. It is also denied that the petitioners-landlords were not occupying any other premises owned by them in urban area. One big hall below entire building No. 84, the Mall Shimla in their possession is stated to be lying vacant. Besides, the shops on Mall road level and top floor of the said building including an attic is also with them. They have concealed such facts from the Court. It is also pointed that they have not vacated any such premises in the urban area without sufficient cause within five years of the institution of the petition. They rather have recently merged the two shops, two offices and mezzanine floor into one big shop within five years of the institution of the petition. This fact has also been concealed from the Court. It is also denied that first floor is being used by the petitioner for their residential purposes and partly for running their business. It is also submitted that they are residing in the top floor of Shop No. 36, the Mall Shimla belonging to one Chander Giri and also in a kothi known as ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 5 Harkar, Lower Jakhoo, Shimla. The petition, as such, has been sought to be dismissed.
.
4. The petitioners-landlords have also filed the rejoinder. Issues were framed in the petition on 31.3.2014.
However, evidence could not be recorded as yet. In view of the respondent-tenant having filed the application hereinabove registered as CMA No. 75-6 of 2014 under Order 6 Rule 17 CPC for seeking permission to amend the reply to the rent petition initially filed. By way of amendment, following preliminary objections have been sought to be incorporated:
"4. That the petition is malafide. As per the alleged receipt regarding handling over the possession with regard to 36 The Mall Shimla placed on file by the petitioners, after the institution of the eviction petition against the respondent, the petitioner Raj Kumar Mehra is stated to have vacated the spacious flat on the Mall in Building No. 36, the Mall Shimla without any rhyme or reason and without there having any sort of litigation and is allegedly showing his residence, in the five storeyed Non-residential building (bearing No. 84, the Mall Shimla, the building in question). Had there been any need for the alleged expansion of the business, the petitioner would have never allegedly shifted in that.
Further he has got another spacious residential set at ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 6 Harkar Jakhoo, Shimla, which depicts that his alleged need for the expansion of the business is malafide with .
the only motive, to enhance the rent exorbitantly, from Rs. 2071/- per annum (i.e. about Rs. 173/- per month) to Rs. 10,000/- per month and to which the respondent showed his inability to pay and the petitioner refused to accept rent, when tendered number of times, in cash, by cheque, by money orders, by pay orders, much prior to the filing of the eviction petition dated May, 2012 in the Hon'ble Court.
5. That the petitioners/non-applicants have concealed material facts from the Hon'ble Court and have not come to the Hon'ble Court with clean hands.
The petition deserves dismissal on this ground alone, at the very outset, with exemplary costs.
i. The petitioners failed to mention regarding merging of two shops (by partition between the two shops), merging of two offices behind the said shops) in their eviction petition.
ii. The petitioner further failed to mention regarding the removal of mezzanine floor over the said two offices, which depicts that they had got surplus accommodation and that is why they had taken this step.
::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 7ii. That the petitioner concealed the facts that they are having residential accommodation at No. .
36, The Mall Shimla and at 'Harkar' Jakhoo, Shimla.
Further, the accommodation got vacated for their personal requirement for business purpose was never utilized for the said purpose and the same is lying vacant.
iv. That the petitioners have concealed material facts regarding their family members. The family members have since reduced. Sh. Roshan Lal (father of Sh. Raj Kumar) had sine expired, as according to the respondent, the Landlords of the premises are M/s Roshan Lal, Raj Kumar. Further, Raj Kumar had almost retired from his business due to his old age (who is aged about 82 years), suffering from various heart ailments, diabetes keeping indifferent health and undergoing treatment in Delhi. As such, the business of both the Firs M/s Nathu Ram & sons and M/s John Raymond Bright are suffering.
v. That the entire five storeyed non residential building bearing no. 84, The Mall Shimla is lying vacant, except the shops, on The Mall road level.
The petitioners have got even surplus accommodation, on the Mall Road level (for carrying ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 8 on their business) which bears no. 84/1, The Mall Shimla, H.P. .
6. That the eviction petition has been filed against the respondent with an oblique motive.
Respondent's father Late Sh. Trilok Chand was a witness in an earlier eviction case against petitioner tenant Sh. R.L. Seth, which he lost. Further there is a clash of business, as the petitioners are carrying on readymade business, in the name of M/S John Raymond Bright and the respondent is carrying on tailoring business in the name of M/s Bhagat Sons Tailors in that every building."
5. In order to explain as to why the preliminary objections sought to be incorporated by way of seeking amendment were not initially incorporated, it has been submitted that new facts having came into existence and to the notice of the respondent-tenant after institution of the petition has necessitated the same after the reply was initially filed.
6. The petitioners-landlords in reply filed to the application have contested and resisted the same on grounds, inter-alia, that the same is not maintainable and rather filed with malafide intention to delay the proceedings in the rent petition.
The facts now sought to be incorporated by way of amendment were already in the knowledge and notice of the respondent-
::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 9tenant. The same otherwise are also not necessary for the decision of the rent petition.
.
7. It is interesting to note that the application initially was decided by learned Rent Controller below vide order dated 24.11.2014, Annexure A1 to CMP No. 2843 of 2017. This order was challenged in this Court in Civil Revision No. 3 of 2015 which was disposed of vide judgment dated 23.4.2015 Annexure A2 to the above application CMP No. 2843 of 2017. The application was remanded to learned Controller below for fresh disposal by assigning reasons. Consequently, the application was decided afresh by learned Rent Controller on 7.10.2015 vide order Annexure A3 to this application. The matter was again agitated in this Court in Civil Revision No. 4 of 2016 which was disposed of vide judgment Annexure A4 and the application again remanded to learned Rent Controller with a direction to decide the same afresh by recording reasons. Consequently, learned Rent Controller has decided the application afresh vide Annexure P1 to this petition. Again the order Annexure P1 has been assailed in this petition.
8. Mr. R.K. Bawa, learned Senior Advocate assisted by Mr. Ajay K. Sharma, Advocate, representing the respondent-
tenant has drawn the attention of this Court to various judgment of the Apex Court in which it is held that while considering an application under Order 6 Rule 17 CPC the approach should be ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 10 liberal and the amendment if necessary for just decision of the lis should be allowed even if sought to be made at some belated .
stage. On the other hand, Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Naresh Sharma, Advocate while inviting the attention of this Court to the provisions contained under Section 14(3) of H.P. Urban Rent Control Act has contended that the petitioners-landlords are not in occupation of any other residential/non-residential building owned by them in Shimla town nor they vacated any such building within five years from the institution of the present petition. The contentions sought to be raised by way of having preliminary objection No. 4 are, therefore, of no help to the case of the respondent-tenant. On merits, it is submitted that what he now intend to incorporate in reply by way of preliminary objection No. 5 is already there in the reply he originally filed. As regard preliminary objection No. 6, the facts he averred therein were in his knowledge and notice when the reply was originally filed. Therefore, according to Mr. Gupta the amendment now sought is neither essential nor required for just decision of the rent petition.
9. Before coming to the point in issue, it is desirable to note at the outset that in terms of the provisions contained under Order 6 Rule 17 CPC amendment in the pleadings if required for just decision of the lis can be allowed at any stage of the proceedings. The proviso to Order 6 Rule 17 CPC take away ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 11 the power of the Court to allow an application for amendment when the trial already commenced unless satisfied that inspite of .
due diligence the party seeking amendment in the pleadings has failed to do so before commencement of trial. The support in this regard can be taken from the judgment of the Hon'ble Apex Court in Vidyabai and others versus Padmalatha and another, (2009) 2 Supreme Court Cases 409. The relevant portion of this judgment reads as follow:
"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:
"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."
It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial."
10. Similar is the view of the matter again taken by the Hon'ble Apex Court in Ajendraprasadji N. Pandey versus Swami ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 12 Keshavprakeshdasji N. and Others, (2006) 12 SCC 1. This judgment also reads as follow:
.
"41. We have carefully considered the submissions made by the respective senior counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. In the counter affidavit filed by respondent No.1, various dates of hearing and with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings.
42. It is to be noted that the provisions of Order VI Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002.
43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless inspite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order VI Rule 17 was due to the recommendation of the Law Commission since Order 17 as it existed prior to the amendment was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 13 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts .
and, therefore, by Civil Procedure Code (Amendment} Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the Rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief."
11. The legal principles settled in these judgments supra, therefore, are that the power of the Court to allow amendment in the pleadings at any stage of the proceedings are controlled by the proviso to Order 6 Rule 17 CPC. Under the proviso no application for amendment can be allowed after the trial has commenced unless the Court is satisfied that the party seeking amendment despite due diligence could not raise the contention sought to be incorporated by way of amendment ordinarily at the time of drafting and filing the pleadings.
12. It is also well settled that amendment in the pleadings should normally be allowed even a prayer in that ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 14 regard made at some belated stage in case the same is essential and required for just and effective decision of the pending lis. It .
has also been emphasized that approach of the Court ceased of the matter should be liberal and not technical while considering an application for amendment. The Apex Court in Surender Kumar Sharma versus Makhan Singh, (2009) 10 Supreme Court Cases 626 has held that the application for amendment merely belated should not be dismissed if the Court finds that allowing the same would facilitate to resolve the real controversy between the parties. The relevant portion of this judgment is reproduced hereunder:
"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 15 latches in making the application for amendment cannot be a ground to refuse amendment.
.
6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. [See B.K. N. Pillai Vs. P. Pillai and another [AIR 2000 SC 614 at Page 616]. Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed.
8. For the reasons aforesaid, the orders of the High Court as well as of the trial Court are set aside. The application for amendment of the plaint filed by the ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 16 appellant stands allowed, subject to the payment of costs of Rs.10,000/- to the opposite party, which shall be .
deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of deposit/payment of such costs, the application for amendment of the plaint shall stand rejected."
13. The Apex Court has again held in State of Madhya Pradesh Versus Union of India and another, (2011) 12 Supreme Court Cases 268 that while considering an application for amendment the liberal approach should be general rule and to adjust the equity, the other side can be compensated with costs.
It has also been settled in this judgment that the amendment which would render the suit infructuous, introduce a totally different, new and inconsistent case or challenges fundamental character of the suit, hence sought after unusual delay should not be allowed. This judgment also reads as follow:
"6. In order to consider the claim of the plaintiff and the opposition of the defendants, it is desirable to refer the relevant provisions. Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code') enables the parties to make amendment of the plaint which 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:::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 17
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."
7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment 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 trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier.
8. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.
9. Inasmuch as the plaintiff-State of Madhya Pradesh has approached this Court invoking the original jurisdiction under Article 131 of the Constitution of India, the Rules framed by this Court, i.e., The Supreme Court Rules, 1966 (in short `the Rules) have to be applied to the ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 18 case on hand. Order XXVI speaks about "Pleadings Generally". Among various rules, we are concerned about .
Rule 8 which reads as under:
"8.The Court may, at any stage of the proceedings, allow either party to amend his pleading in such manner and on such terms as may be just, but only such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties."
The above provision, which is similar to Order VI Rule 17 of the Code prescribes that at any stage of the proceedings, the Court may allow either party to amend his pleadings. However, it must be established that the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties.
10. This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:
(i) Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, at para 5:
"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and ::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 19 unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a .
manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."
(ii) North Eastern Railway Administration, Gorakhpur v.
Bhagwan Das (dead) by LRS, (2008) 8 SCC 511, at para16:
"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."
(iii) Usha Devi v. Rijwan Ahamd and Others, (2008) 3 SCC 717, at para 13:
::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 20"13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh .
v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05) '17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings."
(iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385, at paras 15 & 16:
"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.::: Downloaded on - 20/05/2018 21:12:59 :::HCHP 21
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the .
court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."
(v) Revajeetu Builders and Developers v.
Narayanaswamy and Sons and Others, (2009) 10 SCC 84, at para 63:
"63. On critically analysing 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.::: Downloaded on - 20/05/2018 21:13:00 :::HCHP 22
These are some of the important factors which may be kept in mind while dealing with application filed under .
Order 6 Rule 17. These are only illustrative and not exhaustive."
The above principles make it clear that Courts have ample power to allow the application for amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties."
14. Similar is the view of the mater taken by the Hon'ble Apex Court in Rameshkumar Agarwal versus Rajmala Exports Private Limited and others, (2012) 5 Supreme Court Cases 337.
The relevant para is reproduced as under:
"It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."::: Downloaded on - 20/05/2018 21:13:00 :::HCHP 23
15. It is worth mentioning that the application for amendment in the case ibid was filed immediately after filing of .
the suit i.e. before commencement of the trial which certainly is not the situation in the case in hand because here on framing of issues the trial has already commenced. However, on legal principles governing the field the ratio of this judgment is also attracted in the case in hand. The support can also be drawn from the judgment again that of the Hon'ble Apex Court in Abdul Rehman and another versus Mohd. Ruldu and others, (2012) 11 Supreme Court Cases 341.
16. Now if examining the claims and counter claims in the light of the legal principles discussed hereinabove, prima-
facie, the petitioners-landlords have vacated the premises, building No. 36, The Mall Shimla and Harker building, lower Jhakoo Shimla which were being used by them for residential purposes. In the reply originally filed the respondent-tenant has averred in para-19 thereof that the petitioners were residing in top floor of shop No. 36, The Mall Shimla owned by Shri Chander Giri and in Kothi known as 'Harker' lower Jhakoo. In rejoinder, the stand of the petitioners is that the accommodation i.e. 36, The Mall Shimla is irrelevant for the purpose of the present controversy as the same was not owned by them. The same according to them was vacated on 10.8.2010. In reply to the application they, however, have came forward the version that ::: Downloaded on - 20/05/2018 21:13:00 :::HCHP 24 for want of the date of vacation of such residential premises by them allowing the respondent-tenant to incorporate preliminary .
objection No. 4 in his reply by way of amendment should be a futile exercise. Anyhow, in the considered opinion of this Court no prejudice is likely to be caused to the petitioners-landlords in case preliminary objection No. 4 is permitted to be incorporated to the reply for the reasons that prima facie they seems to have vacated top floor of building No. 36 and kothi known as 'Harker' which were being used by them for residential purpose.
Although as per their version in rejoinder such premises were vacated by them in 2010, however, it is a fact to be gone into and proved during the course of trial of the rent petition. Since the vacation of the respondent-tenant has been sought on the ground of the demised premises required by the petitioners for expansion of their business, therefore, the averments in preliminary objection No. 4 are relevant and necessary for deciding the controversy as to whether they are really in need of additional accommodation to expand their business or not.
Therefore, the amendment sought to be incorporated in reply by way of preliminary objection No. 4 should have been allowed.
Learned Rent Controller, however, has not appreciated this part of the controversy in its right perspective. Being so, the findings to the contrary recorded by learned Rent controller are quashed and set aside.
::: Downloaded on - 20/05/2018 21:13:00 :::HCHP 2517. Similarly, no prejudice is likely to be caused to the petitioners-landlords in case preliminary objection No. 6 is also .
allowed to be incorporated in the reply for the reasons that the respondent-tenant is running a tailoring shop whereas the petitioners-landlords a shop of readymade garments. Therefore, the requirement of the petitioners-landlords is bonafide alone and not malafide to oust the respondent-tenant due to business rivalry also need to be gone into to arrive at a just decision in the petition.
18. However, the averments sought to be incorporated in the reply by way of preliminary objection No. 5 have already been raised in the reply filed originally, therefore, this part of the amendment is not required to be made, hence, the prayer to this effect being not legally and factually sustainable is rejected.
19. True it is that the application for amendment has been filed at a stage when the trial has already commenced.
The record reveals that issues were framed in the writ petition on 31.3.2014. The application for amendment was filed on 5.7.2014 at a stage when the rent petition was fixed for recording of petitioners' evidence. No witness is yet recorded. Although, there is delay in filing the application and the prayer for amendment as such falls under the mischief of the proviso to order 6 Rule 17 CPC. The present, however, is a case where the petitioners-landlords have vacated the residential ::: Downloaded on - 20/05/2018 21:13:00 :::HCHP 26 accommodation i.e. top floor of building No. 36, The Mall, Shimla and 'Harker' lower Jhakoo after filing the reply to the writ .
petition. Had it been not so the respondent-tenant would have raised such plea in the reply filed originally. True it is that the factum of the respondent-tenant is running tailoring business, whereas the petitioners-landlords cloth shop as well as business of readymade garments can reasonably be believed to be in the knowledge and notice of the respondent-tenant at the time of filing the reply to the rent petition. The possibility of he bonafidely omitted to raise such plea at the relevant time and realized the same at a later stage cannot be ruled out.
Therefore, when the delay is not inordinate because the application was filed within four months of the commencement of trial cannot be said to be belated. On the other hand, this Court is of the view that the proposed amendment is essentially required to decide the rent petition judiciously and more effectively if allowed to be incorporated.
20. For all the reasons hereinabove the application for amendment filed by the respondent-tenant to the extent of incorporating preliminary objections No. 4 and 6 is allowed. The prayer to allow him to incorporate preliminary objection No. 5 also in the reply is however, declined. The application as such is partly allowed. Let him to file the amended reply accordingly before learned Rent Controller on 6.4.2018 the date fixed for ::: Downloaded on - 20/05/2018 21:13:00 :::HCHP 27 appearance of the parties before learned Rent Controller below.
The rent petition being old one, learned Rent Controller is .
directed to expedite the disposal thereof as early as possible of course subject to rendering effective assistance by the parties on both sides.
21. The parties through learned Counsel representing them are directed to appear before learned Rent Controller on the date already fixed.
22. The record be sent immediately so as to reach in the Court of learned Rent Controller well before the date fixed.
23. Before parting, it is made clear that the observations hereinabove shall remain confined to the disposal of this petition and have no bearing on the merits of the case.
24. The petition is accordingly allowed partly and stands disposed of. Pending application(s), if any, shall also stand disposed of.
(Dharam Chand Chaudhary), Judge.
March 15, 2018, (vs) ::: Downloaded on - 20/05/2018 21:13:00 :::HCHP