Allahabad High Court
Farman Ilahi vs Shahnawaz Khan on 16 May, 2024
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:88686 Judgment reserved on: 19.03.2024 Judgment delivered on: 16.05.2024 Court No. - 5 Case :- MATTERS UNDER ARTICLE 227 No. - 2562 of 2024 Petitioner :- Farman Ilahi Respondent :- Shahnawaz Khan Counsel for Petitioner :- Shams Tabrez Ali Counsel for Respondent :- Santosh Kumar Kesarwani Hon'ble Ashutosh Srivastava,J.
1. Heard Shri Shams Tabrez Ali, learned counsel for the petitioner/defendant and Shri Santosh Kumar Kesarwani, learned counsel for the caveator/respondent/plaintiff.
2. The instant writ petition, under Article 227 of the Constitution of India, has been filed for setting aside the order dated 15.2.2024 passed by the learned Addl. District Judge, Court No. 14/Special Judge Gangester Act, Varanasi in SCC Suit No. 24 of 2017 (Shahnawaz Khan versus Farman Ilahi) whereby and whereunder the amendment application (Paper No. 116-A) under Order 6 Rule 17 read with Section 151 CPC of the petitioner/defendant has been rejected.
3. The facts, briefly stated, giving rise to the controversy involved in the instant petition and necessary for adjudication of the dispute, is that the father of the petitioner, namely, late Karam Ilahi was, admittedly, the tenant of the entire first and second floor of House No. CK 39/5, Kundi Garh Tola Dalmandi, District Varanasi along with one shop on the ground floor since last 60 years at the monthly rate of rent of Rs.75/- inclusive of water and sewage tax. After the death of the father, the petitioner inherited the tenancy.
4. It is the case of the petitioner that in the month of July, 2017, the petitioner on coming to know that the tenanted premises has been purchased by the respondent/plaintiff Shahnawaz Khan offered the rent of the premises @ Rs.75/- per month for the month of September, 2015 to August, 2017 i.e. Rs.1,800/- through money order, but the same was refused and thereafter the amount of rent was deposited in Misc. Case No. 90 of 2017, under Section 30 (1) of the U.P. Act No. 13 of 1972. The respondent/plaintiff instituted SCC Suit No. 24 of 2017 seeking the eviction of the petitioner on the ground of default in payment of rent. The tenancy was terminated vide notice dated 21.6.2017. In the suit, it was stated that the present rent of the premises is Rs.3,000/- per month and as such, the provisions of U.P. Act No. 13 of 1972 were not applicable. The suit was filed for the relief of ejectment and for recovery of arrears of rent and damages @ Rs.3,000/- per month from 18.4.2015 to 21.8.2017 amounting to Rs.84,332/- and mense profit from 22.8.2017 to 30.8.2017 amounting to Rs.967/-.
5. The petitioner appeared in the proceedings and filed his written statement on 5.3.2018. During the course of the arguments, the petitioner/defendant felt the need to amend the written statement and accordingly, an amendment application dated 13.10.2023 (Paper No. 116-Ka) under Order 6 Rule 17 CPC read with Section 151 CPC was filed seeking amendment in the written statement by adding 6 sub paras, after para 24 of the written statement. Objections were invited against the proposed amendments which were filed by the respondent/plaintiff on 16.10.2023. The petitioner/defendant filed his rejoinder on 5.2.2024. The amendment application (Paper No. 116-Ka) was taken up on 15.2.2024 by the Addl. District Judge, Court No. 14/Special Judge, Gangster Act, Varanasi and rejected observing that the petitioner/defendant in his written statement in Para 7 thereof had admitted the relationship of the landlord-tenant with the plaintiff/respondent. It also noticed that the additional pleas in Para 23 of the written statement, the petitioner/defendant had accepted that rent was being paid to late Mohd. Ibrahim.
6. The Court also noticed that the details of how the property came in the hands of the respondent/plaintiff had been clearly stated in the plaint. The learned Addl. District Judge also noticed that the facts sought to be brought on record by way of the amendment were already in the knowledge of the petitioner/defendant but was not pleaded. It also noted the conduct of the petitioner/defendant who took 05 years to cross question the plaintiff/respondent. The learned Addl. District Judge concluded that the petitioner/defendant by pressing the amendment application was attempting to withdraw his admission admitting the tenancy by denying the title of the plaintiff/respondent which could not be permitted as it would certainly change the nature of the suit. Relying upon the case of Ram Niranjan Kajaria versus Shiv Prakash Kajaria and others, SLP No. 31423-31424 of 2010 decided on 18.9.2015, decision in the case of Salem Advocate Bar Association Tamil Nadu versus Union of India reported in 2005 (2) ARC 588 as also the decision rendered in the case of Abdul Ahmad versus Haq Nawaz Ahmad reported in 2016 (3) ARC 338, the learned Addl. District Judge, proceeded to reject the amendment application by the impugned order.
7. Shri Shams Tabrez Ali, learned counsel for the petitioner/defendant vehemently submits that the learned Addl. District Judge/Special Judge, Gangster Act, Varanasi manifestly erred in law in rejecting the amendment application seeking amendment in the written statement. He has argued that the parameters for considering the amendment in the written statement viz-a-viz amendment in a plaint stands on a different footing and adding new grounds of defence or altering the previous one or taking inconsistent plea is permitted while seeking amendment in written statement, however, the Court below has proceeded to reject the amendment application without considering these aspects. It is further contended that the proposed amendment is on facts and the amendment sought to elaborate the original proceedings, did not introduce any new case/defence compared to what was originally pleaded, the amendment if allowed would not alter the defence already taken or withdraw any kind of admission and finally that the amendment cannot be said to prejudice the plaintiff/respondent in any manner. Reliance has been placed upon decisions of the Apex Court judgment reported in AIR 2006 Supreme Court 2832 (Baldev Singh and others versus Manohar Singh and another) paras 14, 15 & 16; AIR 2007 Supreme Court 1663 (Usha Balashaib Swami versus Kiran Appaso Swami and others) paras 17, 18, 19 onwards and AIR 2017 Supreme Court 4966 (State of Bihar and others versus Modern Tent House and another) to buttress his submissions.
8. The petition has opposed by Shri Santosh Kumar Kesarwani, learned counsel for the caveator/plaintiff/respondent by submitting that the SCC suit giving rise to the present petition was instituted on 30.8.2017. The petitioner/defendant put in appearance in the suit by filing written statement on 5.3.2018. In the written statement, the petitioner admitted that the name of the plaintiff/respondent is duly recorded over the tenanted property as owner. In para 8 of the written statement, the tenancy after the death of his father late Karam Ilahi at the monthly rent of Rs.75/- per month was admitted and only the rate of rent of Rs.3,000/- was disputed. In paras 23, 29 & 30 of the additional pleas, the petitioner has admitted that his father was the tenant of House No. CK 39/5, Mohalla Kundigarh Tola, District Varanasi and used to pay rent to late Mohammad Ibrahim the erstwhile landlord and after coming to know of the purchase of the building by the plaintiff/respondent offered rent to the plaintiff/respondent which was refused whereafter the amount was deposited in Misc. Case No. 90 of 2017. In this regard, learned counsel submits that the tenancy is admitted. By way of the amendment, the title of the plaintiff/respondent is sought to be questioned and that too by moving an application for amendment on 13.10.2023 when the trial has already commenced and plaintiff/respondent has already been examined, evidence has been concluded and the final hearing of the case is on the verge of conclusion. He further submits that withdrawal of an admission cannot be permitted while considering the amendment of the written statement. The Court below has recorded findings of fact that the petitioner has admitted the tenancy as the plaintiff/respondent as landlord and that the amendment in the written statement cannot be permitted and such findings cannot be interfered with by this Court under Article 227 of the Constitution of India. It is accordingly prayed that the petition be dismissed at the threshold.
9. I have heard the learned counsels for the parties and have perused the record.
10. In the opinion of the Court, the object of Order 6 Rule 17 CPC is that the Courts should try the merits of the case before it 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. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment is to be exercised in the larger interest of doing full and complete justice to the parties. The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying for amendment was acting malafide. The Court should liberally allow the amendment to the pleadings since procedural obstacles ought not to impede the dispensation of justice. The Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. Order 6 rule 17 consists of two parts. The first part is discretionary (may) and leaves it to the Court to order amendment of pleadings, 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. The real controversy test is the basic or cardinal test and the Court is required to decide whether such amendment is necessary to decide the real dispute between the parties, if it is so the amendment will be allowed and if it is not the amendment is liable to be refused.
11. In the case at hand, the Court below has recorded findings of fact that the plaintiff/respondent has clearly disclosed in the plaint how the property under the tenancy has come to the share of the plaintiff/respondent. In the written statement filed, the ownership as well as the tenancy has not been disputed, rather it has been accepted by the petitioner/defendant. It is admitted that rent was offered at the admitted rate to the plaintiff/respondent when the same was refused, the same is being deposited under Section 30 of the U.P. Act No. 13 of 1972 in Misc. Case No. 90 of 2017. In the opinion of the Court, by way of the proposed amendment, the petitioner/defendants intends to question the title of the plaintiff/respondent and at the same time seeks to withdraw an admission which cannot be permitted. If the proposed amendment is allowed, the nature of the SCC suit shall change to one of title which cannot be permitted. Further, the Court is of the opinion that the amendment proposed is not at all necessary for deciding the real controversy involved. The case laws cited by learned counsel for the petitioner are distinguishable and none lays down the proposition that an admission can be permitted to be withdrawn by amendment of the written statement.
12. The order dated 15.2.2024 rejecting the amendment application (Paper No. 116 Ka) by the Addl. District Judge, Court No. 14/Special Judge, Gangster Act, Varanasi is perfectly justified and suffers from no infirmity warranting any interference in exercise of powers under Article 227 of the Constitution of India.
13. The Apex Court in Sadhana Lodh vs. National Insurance Company Limited, reported in 2003 (3) SCC 524 has held that the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution of India is confined only to see whether an inferior court or tribunal has proceeded within the parameters of the jurisdiction. In the exercise of its jurisdiction under Article 227 the High Court does not act as an Appellate Court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior Court or Tribunal has passed an order.
14. In the case at hand learned Addl. District Judge, Court No. 14/Special Judge, Gangster Act, Varanasi in the considered exercise of the jurisdiction has rejected the Amendment in the written statement under Order 6 Rule 17 read with Section 151 CPC. There is no reason for this court to interfere. The order dated 15.02.2024 rejecting the amendment is affirmed. The petition is accordingly dismissed. The learned Court below is directed to decide the SCC Suit No. 24 of 2017 with all expedition.
15. No order as to costs.
Order Date :- 16.5.2024 Ravi Prakash