Himachal Pradesh High Court
Shri Naresh Kumar Son vs Babu Lal And Others on 29 November, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 29 DAY OF NOVEMBER, 2021
th
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL REVISION No.215 of 2016
Between:
1. SHRI NARESH KUMAR SON
OF
2. SHRI RAMESH KUMAR SON
OF
3. SHRI BABU LAL, SON OF
LATE SHRI CHHOTEY LAL,
RESIDENT OF PAN SHOP
NO.14, THE MALL, SHIMLA,
H.P.
....PETITIONERS NO.1 TO 3.
(BY SHRI G.C. GUPTA, SENIOR ADVOCATE, WITH MS. MEERA
DEVI, ADVOCATE )
AND
1. SHRI JOGINDER LAL
KUTHIALA, SON OF LATE
SHRI BISHAN LAL KUTHIALA,
2. SHRI JATINDER LAL
KUTHIALA, SON OF LATE
SHRI BISHAN LAL KUTHIALA.
3. MS. SUSHMA KUTHIALA,
WIFE OF SHRI JOGINDER
LAL KUTHIALA
ALL RESIDENTS OF 11,
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2
.
CANAL ROAD, JAMMU (J&K).
....RESPONDENTS/PETITIONERS.
4. SMT. KRISHNA DEVI
DAUGHTER OF LATE SHRI
CHOTE LAL
5. SMT. PREMI DEVI,
DAUGHTER OF LATE SHRI
CHOTE LAL,
BOTH RESIDENTS OF PAN
SHOP NO.14, THE MALL,
SHIMLA, H.P.
...... RESPONDENTS.
(BY MR. SUNEET GOEL, ADVOCATE, FOR RESPONDENTS
NO.1 TO 3.
RESPONDENTS NO.4 AND 5 EX PARTE)
Whether approved for reporting?1 Yes
Reserved on: 15.11.2021
This revision petition coming on for pronouncement of judgment this day, the
Court passed the following:
JUDGMENT
By way of this Revision Petition, the petitioners have assailed order dated 17.11.2016, passed by the Court of learned Rent Controller, Shimla, H.P., in CMA No.1266 of 2015, titled as Sh. Loginder Lal Kuthiala and others Versus Babu Lal and others, vide which an application filed under Order 6, Rule 17 of the Code of 1 ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 3 .
Civil Procedure Code, by the present petitioners, praying for amendment of the reply to the Rent Petition, has been dismissed.
2. Brief facts necessary for the adjudication of the present petition are that the contesting respondents herein have filed an Eviction Petition against the present petitioners as well as proforma respondents, under Section 14 of the Himachal Pradesh Urban Rent Control Act,1987, qua the Demised Premises, which is a shop measuring 7x6 feet. The eviction proceedings have been filed in the year 2012. On 15.12.2015, an application was filed by the present petitioners, under Order 6, Rule 17 of the Code of Civil Procedure Code, praying for amendment of the reply filed to the Eviction Petition. It was stated in the application that the landlords had filed the petition for eviction of the tenants and after filing of reply to the Eviction Petition, the applicants made several inquiries from Jammu as to where the landlords actually reside and they came to know about certain facts following framing of issues that the landlords were owning business in the name of RB Jodhamal & Company Pvt.
Ltd., which deals in manufacturing and supply of steel products and they were having other businesses also, which as per the petitioner had necessitated the proposed amendment in the reply as the landlords had no intention to settle at Shimla for the purpose of ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 4 .
occupying the Demised Premises and the reasons narrated in the Rent Petition seeking ouster of the tenants were not bonafide.
According to the petitioners herein the amendment sought was genuine and arose out of subsequent developments which could not be pleaded before framing of the issues despite exercise of due diligence.
3. The application was resisted by the landlords, inter alia, on the ground that the same stood filed just to delay and linger on the proceedings. It was also mentioned in the reply that the Demised Premises were located on the Mall Road at Shimla outside the premises where business in the name and style of Alfa Restaurant was being run by one Shri Surinder Pal Bamba and the Demises Premised alongwith premises of Alfa Restaurant was required by the landlords for carrying out their own business. It was also mentioned in the reply that the factum of the landlords carrying on various business in Jammu was very much in the knowledge of the tenants and there exists no legal impediment under law which prohibited the landlords from running business in Shimla after having the premises vacated, simply on the ground that they were carrying out their business in Jammu. It was denied in the reply that the ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 5 .
landlords were having no intention to run the business at Shimla and as per the landlords, the amendment sought was neither necessary nor vital for the decision of the case.
4. This application stands dismissed by the learned Rent Controller by returning the findings that the trial commenced in the case on 09.04.2013 and thereafter, affidavit in evidence of one of the landlords was already filed post which the application stood filed under Order 6, Rule 17 of the Code of Civil Procedure Code by the tenants, which application did not fulfill the basic ingredients of due diligence. Learned Rent Controller also held that negligence in the pleadings cannot be permitted to be cured by way of amendment at a belated stage. Learned Rent Controller also held that the Rent Petition was instituted on 08.06.2012 and reply to the same was filed on 31.10.2012. Thereafter, issues were framed on 09.04.2013 and the case was listed for evidence of the landlords and one of the witnesses had already filed affidavit in support of evidence when the application stood filed. Learned Rent Controller also observed that there was nothing in the application from which it could be inferred as to how the amendment being sought to be incorporated was necessary and imperative for disposal and adjudication of the controversy in hand. On these findings, it dismissed the application.
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5. Learned Senior Counsel appearing for the petitioners has argued that the impugned order is not sustainable in the eyes of law as the learned Court erred in not appreciating that the proposed amendments being sought to be incorporated were necessary for the adjudication of the case as the same would have had demonstrated that the petition was filed just to harass the tenants as the landlords had no intention to settle in Shimla. He has also argued that the law was well settled that the amendment in the reply has to be granted liberally as compared to the plaint or petition and this important aspect of the matter has also been ignored by the learned Court below. Learned Senior Counsel also relied upon the following judgment:
1.) (2000) 1 Supreme Court Cases 712, titled as B.K. Narayana Pillai Versus Parameswaran Pillai And Another.
2.) (2002) 7 Supreme Court Cases 559, titled as Sampath Kumar Versus Ayyakannu And Another.
3.) AIR 1974 Supreme Court Cases 1178, titled as Shikharchand Jain Versus Digamber Jain Praband Karini Sabha and Others.
6. Opposing the petition, learned counsel for the contesting respondents has argued that there is no infirmity in the order ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 7 .
passed by the learned Rent Controller as it rightly rejected the application filed for amendment in the reply because the application filed was nothing but an attempt to delay the proceedings. He argued that the tenants were very well aware of the businesses being carried out by the landlords and even otherwise, the contents of the application nowhere demonstrated that the proposed amendments could not have been incorporated in the reply when it was originally filed despite due diligence. On these basis, he has prayed for rejection of the present petition.
7. I have heard learned counsel for the parties and have gone through the impugned order as well as record of the case.
8. The stage, at which the application for amendment of the reply has been filed has already been mentioned hereinabove. A perusal of the application filed under Order 6, Rule 17 of the Code of Civil Procedure Code demonstrates that the amendment proposed was in Para2 of the reply by way of preliminary objection, wherein the tenants intended to incorporate that the Eviction Petition was neither competent nor maintainable, inter alia, on the ground that the landlords were having their business empire in Jammu & Kashmir and there was no allegation in the petition that the ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 8 .
petitioners wanted to close down their business at Jammu and settle in Shimla for the purpose of running their business in the Demised Premises which was a small Pan and Biri Shop.
9. Order 6, Rule 17 of the Code of Civil Procedure Code provides that the Court may at any stage of the proceedings allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all such pleadings shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. The proviso to Order 6, Rule 17 of the Code of Civil Procedure Code contemplates 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 have raised the matter before the commencement of the trial. This rule has been amended w.e.f.
01.07.2002. Under the unamended provision, the proviso was not there. Thus, after the amendment which has been carried out in Order 6, Rule 17 of the Code of Civil Procedure Code, the proviso now mandates 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 a party could not have raised the issue before the commencement of the trial.
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10. Before proceeding further, at this stage itself, I would like to refer to the judgments relied upon by learned Senior Counsel for the petitioners. In (2000) 1 Supreme Court Cases 712, titled as B.K. Narayana Pillai Versus Parameswaran Pillai And Another, Hon'ble Supreme Court of India has been pleased to hold that delay in deciding the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which is not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. Hon'ble Supreme Court has also held that all amendments of the pleadings should be allowed which are necessary for determination of the real controversy. In (2002) 7 Supreme Court Cases 559, titled as Sampath Kumar Versus Ayyakannu And Another, Hon'ble Supreme Court has been pleased to hold that Order 6, Rule 17 of the Code of Civil Procedure Code confers jurisdiction on the Court to allow either of the parties to alter or amend the pleadings at any stage and question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. In AIR 1974 Supreme Court ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 10 .
Cases 1178, titled as Shikharchand Jain Versus Digamber Jain Praband Karini Sabha and Others, Hon'ble Supreme Court has been pleased to hold that the amendment in pleadings should be allowed if it shorten the litigation.
11. Coming to the facts of this case, the genesis of the application filed for amendment of the reply was that the applicants came to know about the factum of the landlords running their business in Jammu after framing of the issues and these facts earlier were not in their notice and they could not have pleaded these facts before framing of issues despite the exercise of due diligence. Now in this application, there is no mention as to who brought these facts into the notice of the petitioners and when these facts came into their knowledge. Further, a perusal of the record of the case demonstrates that the Eviction Petition has been originally filed in the year 2012 and in the said Eviction Petition, the address of all the landlords/petitioners is given that of 'Jammu'. It is further mentioned in the Eviction Petition that the Demised Premises were let out to the predecessorininterest of the tenants, Late Shri Chhotay Lal about sixty years back as from the date of filing of the Rent Petition. The affidavit which has been filed in support of the ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 11 .
Eviction Petition, is sworn in by Shri Joginder Lal Kuthiala, one of the land owners who has mentioned in his affidavit his address of Jammu and further his occupation as business. Not only this, the reply which has been filed to the Eviction Petition, dated 13.09.2012, demonstrates that it stands mentioned in Para10 thereof that the landlords were not even residing at Shimla for their businesses and for this purpose they were residing in Jammu and Pathankot. This clearly demonstrates that the factum of the landlords carrying out their business in Jammu and Pathankot and the factum of the landlords residing at Jammu was very much in the knowledge of the tenants. Thus, the filing of the application, praying for amendment of the reply was nothing but an afterthought and was a tactic deployed of the present petitioners to delay the eviction proceedings.
Further, there is nothing in the application from which it can be inferred that the proposed amendments could not have been incorporated in the earlier filed reply by the tenant despite "due diligence". On the contrary, here is a case where all these facts were in the knowledge of the tenants as is also evident from the reply filed to the Eviction Petition.
12. The above clearly demonstrates that filing of the amendment application was not a bonafide act and in this ::: Downloaded on - 31/01/2022 23:21:33 :::CIS 12 .
background this Court does not finds any infirmity with the order passed by the learned Rent Controller, vide which the application has been dismissed. The judgments relied upon on behalf of the petitioners also do not have any bearing in the present case as the purpose of filing of the application under Order 6, Rule 17 of the Code of Civil Procedure Code was nothing but an abuse of the process of law to delay the proceedings and this is not the spirit of the provisions of Order 6, Rule 17 of the Code of Civil Procedure Code.
13. Thus, as this Court does not finds any merit in this petition and further as this Court does not finds any infirmity with the order impugned, the present petition being devoid of any merit is dismissed, so also pending miscellaneous applications, if any.
Interim Order, if any, stands vacated.
November 29, 2021 (Ajay Mohan Goel)
(rishi) Judge
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