Allahabad High Court
Col. (Retd.) Harpal Singh Dhillon & ... vs District Judge, Lucknow & Others on 1 November, 2019
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved
(1) Case :- MISC. SINGLE No. - 40 of 2013
Petitioner :- Col. (Retd.) Harpal Singh Dhillon & Others
Respondent :- District Judge, Lucknow & Others
Counsel for Petitioner :- Rama Kant Sharma,Apoorva Tiwari
Counsel for Respondent :- Manish Kumar,Nishant Verma,Shikhar Anand
AND
(2) Case :- MISC. SINGLE No. - 843 of 2013
Petitioner :- M/S Hindustan Petroleum Corporation Ltd. Thru Chairman & Anr
Respondent :- Colonel (Retd.) Harpal Singh Dhillon & Others
Counsel for Petitioner :- Shikhar Anand
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Hon'ble Manish Mathur,J.
1. Heard Sri Apoorva Tiwari, learned counsel for plaintiff/lessors and Sri Shikhar Anand, learned counsel appearing on behalf of defendants/lessee, Hindustan Petroleum Corporation Limited.
2. Lis with regard to property and parties being same, both petitions were clubbed earlier by orders of this Court and are therefore being decided by this common judgment.As per admitted facts, plaintiff/lessors filed Regular Suit No.167 of 2009 of property in question along with prayer for recovery of damages for use and occupation against defendants at market rate. Defendants filed their written statement on 30.06.2009 in which pecuniary jurisdiction of court concerned was challenged. Subsequently issues were framed on 15.02.2010 in which issue no.4 pertained to pecuniary jurisdiction of court concerned which was decided as a preliminary issue in favour of plaintiffs vide order dated 29.01.2011, which became final since no challenge to it was made. Thereafter, evidence of plaintiff-witness 1 started on 15.02.2011. On same date, defendants filed an application for framing of additional issue with regard to jurisdiction of court concerned to hear the suit. Objections dated 01.03.2011 were filed by plaintiff(s) objecting to framing of additional issues on ground that no plea with regard to jurisdiction had been taken in written statement. Said application was rejected by means of order dated 25.10.2011 primarily on the ground that no such pleading regarding jurisdiction of court had been taken in written statement. Civil Revision No.169 of 2012 against order dated 25.10.2011 was dismissed vide order dated 10.07.2012 on the ground that revision against such an order was not maintainable, against which Writ Petition No. 843(M/S) of 2013 has been filed.
3. In the meantime, after rejection of application for framing of additional issues vide order dated 25.10.2011, defendants filed an application dated 30.01.2012 for amendment of written statement, particularly paragraph 4 to indicate that suit was barred in terms of Section 29-A of U.P. Act No.13 of 1972. Objections to said application were filed by plaintiffs on 01.03.2012. Vide order dated 27.08.2012, application for amendment of written statement was allowed and Civil Revision No.270 of 2012 was also rejected by means of order dated 11.10.2012, against which Writ Petition No. 40(M/S) of 2013 has been filed.
Writ Petition No. 40(M/S) of 2013
4. Present petition has been filed by plaintiff/lessors against orders allowing application for amendment of written statement. Learned counsel for petitioner has raised challenge to said orders primarily on the ground that after amendment of Order 6 Rule 17 Code of Civil Procedure, 1908 (hereinafter referred to as the ''Code'), since no averment whatsoever has been made in application seeking amendment, with regard to ''due diligence' on part of defendants requiring it to indicate reasons why such pleading was not taken prior to start of evidence. It has been submitted that such a liberal approach towards amendment cannot be taken after evidence has started. Learned counsel for petitioner has also submitted that there is no averment in either written statement or in application seeking amendment regarding applicability of U.P. Act No.13 of 1972(hereafter referred to as the ''Act') and consequently amendment seeking incorporation of paragraph with regard to Section 29-A of the Act would not be maintainable in such circumstances. It has also been submitted that case law for consideration of applications regarding amendment in written statement enunciated by this Court has been incorrectly applied.
5. Per contra, learned counsel for opposite parties has submitted that there was no question of indicating due diligence on part of defendants since plea with regard to lack of jurisdiction of court concerned had already been taken in paragraph 42 of written statement and such plea was taken separately from plea pertaining to lack of jurisdiction on ground of undervaluation. It has also been submitted that lack of inherent jurisdiction of court concerned goes to very root of matter and can be raised at any stage. It has also been submitted that even otherwise due diligence on part of defendants has already been indicated in amendment application. Learned counsel has further submitted that amendment sought in written statement has merely substantiated and explained pleadings already taken in written statement and even otherwise no prejudice would be caused to plaintiffs in case such amendment is allowed in view of fact that evidence has barely started. He has further submitted that requirement of amending written statement occurred only after application for framing of additional issues was rejected on the ground that pleadings with regard to same are not available in written statement. Learned counsel for opposite parties has further submitted that pleadings with regard to applicability of Section 29-A of the Act were already on record since plaintiff-lessors themselves had pleaded in the plaint that initially property in question was leased out as an open land whereafter lessee had made permanent constructions with knowledge and consent of lessors thereby granting protection to tenant from eviction in terms of Section 29-A of the Act. He has drawn attention to contents of plaint and written statement to substantiate his arguments with the submission that once such a situation was admitted by plaintiffs, there was no occasion for defendant-lessee to have raised it separately in written statement and had merely admitted the same. As such, he has submitted that framing of additional issue regarding jurisdiction of court in terms of Section 29-A of the Act would be imperative and provision regarding ''due diligence' would be inapplicable in present case.
6. Heard learned counsel for parties and perused the record.
7. For proper adjudication of present dispute, it would be relevant that provisions of Order VI Rule 17 of the Code and Section 29-A of the Act be considered. Same (relevant portion) are as follows:-
Order VI Rule 17 of the Code of Civil Procedure, 1908 "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:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that is spite of due diligence, the party could not have raised the matter before the commencement of trial." Section 29-A of U.P.Act No.13 of 1972 "29-A. Protection against eviction to certain classes of tenants of land on which building exists.-(1) ....................................... (2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. (3).......................................
(4) .......................................
(5) .......................................
(6)(a) .......................................
(b) .......................................
(c) .......................................
(d) .......................................
(7) .......................................
Explanation.-......................................."
8. A perusal of order dated 27.08.2012 allowing amendment application makes it clear that amendment application has been allowed primarily on the ground that a legal plea such as is being taken by defendants can be raised at any stage, does not change nature of suit, does not cause any prejudice to plaintiff(s) and can be compensated by costs. Revisional court has also not interfered with order dated 27.08.2012 primarily on the ground that legal pleas can be raised at any stage. For allowing such an application, both the courts below have relied upon a decision rendered by this Court in Jawahar Singh v. Vedpal reported in 2012 (2) ARC 179.
9. So far as submission of learned counsel for plaintiff/lessors is concerned regarding pleading of ''due diligence' on part of party seeking amendment that it could not have raised the matter before commencement of trial is concerned, a reading of amendment application indicates that plea has been raised that it is admitted fact as pleaded in plaint that permanent construction was raised over disputed property as per lease agreement thereby covering disputed property under Section 29-A of the Act due to which application for framing of additional issues had been filed. It has been further stated that need for filing of amendment application arose in view of fact that application for framing of additional issues regarding jurisdiction of court had been rejected on the ground that defendants had not indicated plea of jurisdiction in detail.
10. A reading of plaint clearly indicates pleadings raised by plaintiff-lessors that they are owners and landlords of Khasra Plot No.103 which was let out on 01.01.1971 to Esso Eastern Incorporated on a yearly rent of Rs.4,000/- by means of a registered lease deed executed between parties on 09.06.1972. It has also been averred that as per agreement of lease, the lessee Esso Eastern Incorporated raised permanent construction over the land to run petrol pump. It has been further stated that Esso Eastern Incorporated was acquired and amalgamated with Hindustan Petroleum Corporation Ltd. and as such the lease and lease rights of Esso Eastern Incorporated vested and continued with Hindustan Petroleum Corporation Ltd on same terms and conditions as per original agreement of lease. Said averments made in plaint were simply admitted in written statement without any further elaboration.
11. So far as submissions of learned counsel for petitioner regarding applicability of term ''due diligence' is concerned, a reading of proviso appended to Order VI Rule 17 of the Code makes it evident that court concerned will have to come to a conclusion regarding due diligence of party seeking amendment as to why amendment sought could not have been raised before commencement of trial. The proviso as such makes it obvious that applicability of due diligence would arise only in case new pleadings are sought to be introduced by way of amendment. Naturally, as a corollary, provisions regarding due diligence would not be applicable in case amendment sought is only to explain or buttress pleadings already on record.
12. In the present case, a reading of plaint, written statement and provisions of Section 29-A of the Act makes it clear that pleadings regarding raising of permanent construction over the property with knowledge and consent of lessors were already on record as pleaded in the plaint and admitted in written statement. As such, it is clear that by means of amendment application, no new ground or pleading was sought to be introduced by defendant and nature of amendment was only to buttress pleadings which were already on record. In such circumstances, there was no occasion for court concerned to have come to a conclusion regarding due diligence of defendants in filing amendment application. Similarly, there was no occasion for defendants to have pleaded due diligence while submitting amendment application.
13. A reading of amendment application makes reason for its filing clear that despite such pleadings already on record, filing of amendment application was made necessary owing to rejection of application for framing of additional issues regarding jurisdiction of court concerned in view of Section 29-A of the Act. It was in these circumstances, that filing of amendment application was required merely to buttress pleadings that were already on record. The same was also required to be done in view of order dated 25.10.2011 rejecting application for framing of additional issues only on ground that no such pleadings as envisaged under Section 29-A of the Act have been made by defendants.
14. Learned counsel for petitioner/lessors has relied upon judgment of Hon'ble the Supreme Court rendered in Ajendraprasadji N.Pandey and another v. Swami Keshavprakeshdasji N. and others reported in (2006) 12 SCC 1 in which amendment application was rejected on ground that no fact was pleaded nor any ground raised in amendment application to even remotely contend that despite exercise of due diligence the matter could not be raised by appellants. It has also been held that trial is deemed to commence when issues are settled and case is set down for recording of evidence.
15. In respectful opinion of this Court, the said judgment would be inapplicable, since as already seen hereinabove in the present case, pleadings regarding circumstances for filing of amendment applications have already been indicated in amendment application itself that it was required to be filed on account of rejection of application for framing of additional issues on ground that there was no such pleading by defendants, which however were already on record.
16. Learned counsel for petitioner while buttressing his submissions regarding due diligence has also relied upon decisions rendered by Hon'ble the Supreme Court in J. Samuel and others v. Gattu Mahesh and others reported in (2012) 2 SCC 300 and Vidyabai and others v. Padmalatha and another reported in (2009) 2 SCC 409. However, since it has already been held herein above that amendment sought by defendants was only to buttress pleadings already on record, provision regarding due diligence was neither required to be pleaded nor seen by court concerned, aforesaid judgments would also be inapplicable in present case in said circumstances.
17. Learned counsel for petitioners has also relied upon judgment rendered by Hon'ble the Supreme Court in State of U.P. and another v. Synthetics and Chemicals Ltd. and another reported in (1991) 4 SCC 139 to substantiate his submissions that reliance placed on judgment in Jawahar Singh v. Vedpal(supra) by both courts below while allowing amendment application was incorrect since said judgment did not lay down any law and was therefore not in the nature of any precedent. In said judgment, Hon'ble the Supreme Court has held that a decision which is not express and is not founded on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as contemplated by Article 141 of Constitution of India. It has been further held that ''precedents sub-silentio and without argument are of no moment'.
18. So far as aforesaid judgment in State of U.P. and another v. Synthetics and Chemicals Ltd. and another(supra) is concerned, it can be seen that same would not be of any consequence in present case inasmuch as orders of both courts below are based not only on judgment in Jawahar Singh v. Vedpal(supra) but are also based on provisions of Order VI Rule 17 of the Code and law pertaining to same that amendments particularly with regard to written statements should be liberally allowed since it does not cause any prejudice to rights of plaintiffs. Further more, amendments sought, have been allowed on payment of cost. Judgment in State of U.P. and another v. Synthetics and Chemicals Ltd. and another(supra) would have had grave implications for defendants if orders impugned were based only on judgment in Jawahar Singh v. Vedpal(supra). That not being the case, petitioner would not derive any benefit from law laid down in State of U.P. and another v. Synthetics and Chemicals Ltd. and another(supra).
19. Learned counsel for petitioners has relied upon judgment rendered by this Court in Sardar Gurcharan Singh v. Ist Additional District Judge, Kanpur and others reported in 1994 (1) ARC 546 to buttress his submissions that provisions of Section 29-A of the Act would be inapplicable in present case. In considered opinion of this Court, applicability or otherwise of Section 29-A of the Act is not a material fact to be seen at the time of consideration of amendment application. Such submissions regarding applicability of Section 29-A of the Act can definitely be raised by petitioners, if and when, issues regarding same are framed and considered by trial court. As such, judgment in Sardar Gurcharan Singh v. Ist Additional District Judge, Kanpur and others(supra) would be of no consequence in present stage of dispute.
Legal aspects for courts to take into consideration for amendment applications have already been dealt with in detail by Hon'ble the Supreme Court in a number of cases. The said propositions have already been indicated in judgments relied upon by learned counsel for petitioners.
20. In Vidyabai and others(supra), Hon'ble the Supreme Court has clearly held that courts should allow amendments that would be necessary to determine real question of controversy between parties but the same indisputably would be subject to the condition that no prejudice is caused to other side. It has been further held that unless jurisdictional fact is found to be existing, courts will have no jurisdiction at all to allow amendment of plaints. The relevant portions of aforesaid judgment are as follows :
"18. Reliance has also been placed by Ms Suri on Rajesh Kumar Aggarwal v. K.K. Modi [(2006) 4 SCC 385] . No doubt, as has been held by this Court therein that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side."
"19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
21. In J. Samuel and others(supra), Hon'ble the Supreme Court has held that primary aim of courts is to try the case on its merits and ensure that rules of justice prevails. For this the need is for true facts of the case to be placed before a court so that it has access to all relevant information in coming to its decision. It has been held that courts' discretion to grant permission for a party to amend his pleading lies on two conditions : (a) firstly no injustice must be done to the other side; and (b)The amendment must be necessary for the purpose of determining real question in controversy between the parties.
22. Hon'ble the Supreme Court in M.Revanna v. Anjananna (Dead) by Legal Representatives and others reported in (2019) 4 SCC 332 has clearly held that leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. It has been further held that though normally amendments are allowed in pleadings to avoid multiplicity of litigation, courts need to take into consideration whether application seeking amendment is bonafide or malafide and whether amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money. Relevant paragraph of the said judgment is as follows:-
"7. 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 6 Rule 17 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."
23. Learned counsel appearing on behalf of opposite party(s)/lessee while substantiating his arguments has relied upon judgment of Hon'ble the Supreme Court of India rendered in Baldev Singh and others v. Manmohan Singh and another reported in (2006) 6 SCC 498 whereunder it has been held that amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle since adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action.
24. Learned counsel has also relied upon judgment rendered in Sushil Kumar Jai v. Manoj Kumar and another reported in 2009 LCD 1096 in which Hon'ble the Supreme Court has allowed amendment of written statement with the view that same was permissible since appellant had sought only to elaborate and clarify the earlier inadvertence and confusion made in his written statements. It has been held that even assuming that there was admission made by appellant in his original written statement, then also such admission can be explained by amendment of written statement even by taking inconsistent pleas or substituting or altering his defence.
25. Reliance has also been placed by learned counsel for opposite party/lessee on judgment rendered by Hon'ble the Supreme Court in Reevajeetu Builders and Developers v. Narayanaswamy and sons and others reported in (2009) 10 SCC 84 in which points and factors to be taken into consideration while dealing with amendment application has been summarised, which are as follows: -
"Para 63". On critically analyzing 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.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive."
26. From a reading of aforesaid judgments of Hon'ble the Supreme Court, the factors clearly discernible for consideration of amendment in written statement is that :
(a) It is to be seen whether amendment sought is imperative for proper and effective adjudication of case.
(b) the amendment should not cause prejudice to other side which cannot be adequately compensated in terms of money.
(c) amendment to written statements are to be allowed in a much more liberal fashion than amendment made to plaints.
(d) amendments seeking merely to elaborate or clarify earlier pleadings already raised in written statements are to be readily allowed.
(e) concept of ''due diligence' would arise only in case new pleadings are sought to be introduced by means of amendment and the same would be inapplicable in case only pleadings made earlier are sought to be elaborated, clarified or substantiated by means of amendment.
(f) amendment sought is imperative for proper and effective adjudication of the case.
27. Upon applicability of aforesaid judgments in present case, following features are quite evident :-
(a) amendment sought to be introduced in written statement pertains to applicability of Section 29-A of the Act,
(b) Section 29-A itself pertains to applicability to land let out where tenant with landlords' consent has erected any permanent structure and incurred expense in execution thereof,
(c) paragraphs 3 and 5 of plaint clearly indicate that land was let out to predecessor in interest of opposite party/lessee over which lessee raised permanent construction. Said paragraphs have been blandly admitted in written statement without any further elaboration, and
(d) amendment application seeks to introduce pleading regarding applicability of Section 29-A of the Act in view of admission of plaintiffs that only land was let out to predecessor in interest of lessee who was permitted to raise permanent construction of petrol pump building incurring huge expenses.
28. Aforesaid facts clearly indicate that foundation of pleadings sought to be incorporated by means of amendment were already available on record in plaint and were admitted in written statement. Hence, it can be clearly seen that amendment sought to be incorporated by opposite party(s)/lessee was only to elaborate and clarify pleadings that were already on record.
29. Upon consideration of factors indicated herein above, it is clear that courts below correctly allowed amendment application since no prejudice was caused to plaintiff/lessors who even otherwise were compensated by grant of cost.
30. In view of aforesaid, petition being devoid of merit is dismissed.
Writ Petition No.843(M/S) of 2013
31. Present petition has been filed against order dated 25.10.2011 rejecting application for framing of additional issues. Revisional order dated 10.07.2012 passed in Civil Revision No.169 of 2012 is also under challenge since it was dismissed on ground that revision against an interlocutory order is not maintainable.
32. As indicated herein above, petitioner/defendant-lessee had filed application dated 15.02.2011 for framing of additional issues to which objections had been filed by opposite party/plaintiff-lessors that such an application should be rejected on the ground that no such pleading regarding jurisdiction of court concerned has been raised in written statement. It was also stated that issues regarding jurisdiction of court concerned pertaining to court fees had already been decided which had become final and, therefore, there was no occasion for framing of additional issues.
33. Vide order dated 25.10.2011, application for framing of additional issues was thereafter rejected primarily on the ground that no specific pleading regarding lack of jurisdiction of court concerned had been indicated in the application. It was also held that plea regarding jurisdiction of court pertaining to pecuniary aspect such as court fees had already been decided and, therefore, there was neither occasion nor any new substance to frame additional issues regarding jurisdiction of courts.
34. Learned counsel appearing for petitioner/defendant-lessee has submitted that in paragraph 32 of written statement, ground taken was that suit was highly undervalued whereas in paragraph 42 it was not only stated that suit was highly undervalued for purposes of court fee but also that it had been filed in court which lacked jurisdiction to entertain present suit which was therefore liable to be dismissed on that ground alone. Learned counsel for petitioner has therefore submitted that separate pleadings had been raised regarding jurisdiction of court concerned inasmuch as challenge to jurisdiction of pecuniary aspect regarding undervaluation had been made separately from lack of inherent jurisdiction of court concerned which therefore required an additional issue to be framed regarding jurisdiction of court concerned to entertain the suit. It has been submitted that it was in these circumstances that application had been filed regarding framing of additional issues in view of provisions of Order XIV Rule 5 of the Code since such an issue went to the root of matter.
35. Learned counsel appearing for opposite party/plaintiff-lessors, however refuting submissions advanced by learned counsel for petitioner has argued that application for framing of additional evidence was correctly rejected by trial court on account of fact that earlier issue regarding undervaluation of suit had already been decided vide order dated 29.01.2011 which was challenged in revision and thereafter in Writ Petition No.1561(M/S) of 2012 which was subsequently dismissed as withdrawn thereby rendering order dated 29.01.2011 deciding the issue, as final. He has further submitted that in view of said fact, there was no occasion to frame an additional issue regarding jurisdiction of court concerned particularly since no new pleadings had been made in application requiring framing of additional issue of jurisdiction of court concerned. He has further submitted that a reading of paragraph 42 of written statement has to be seen as a whole and not in a segregated manner. Learned counsel has further submitted that the word ''and' in paragraph 42 of written statement is conjunctive thereby requiring the entire paragraph to be seen as a whole. As such, it is submitted that no separate plea of lack of jurisdiction of court concerned to entertain the suit was taken and the only ground for lack of jurisdiction pertained to undervaluation of suit, which having become final was not required to be reopened by framing of additional issue.
36. A perusal of application filed under Order XIV Rule 5 of the Code for framing of additional issues indicates complete lack of pleading regarding requirement of framing of additional issue. The only ground taken is that since in paragraph 42 of written statement, an averment has been made that the court lacks jurisdiction, therefore, such additional issue is required to be framed.
37. A perusal of impugned order dated 25.10.2011 clearly indicates that application for framing of additional issues has been rejected primarily on account of fact that neither any specific pleading nor averment has been made as to why the court lacks inherent jurisdiction to hear the suit. However, trial court has also granted liberty to defendant/lessee to raise such ground in future in case appropriate pleadings are made.
38. Order XIV Rule 5 of the Code grants absolute discretion to court concerned to amend or frame additional issues on such terms as it thinks fit and all such amendments or additional issues as may be necessary for determining matters in controversy between parties.
39. Although said provisions clearly indicate discretion of court concerned regarding framing of additional issues but at the same time such additional issues cannot be framed on whims and fancies of a party concerned without even laying bare foundation for framing of such additional issues particularly when once issues have already been framed and evidence has started.
40. In the present case, it can be seen from a perusal of application for framing of additional issues that even bare minimum foundation has not been laid for framing of additional issues regarding inherent lack of jurisdiction of court to entertain the suit. Even otherwise trial court has already granted liberty to defendant/lessee to file appropriate application in future for framing of additional issues in case grounds for same have been laid.
41. In view of aforesaid liberty already granted by trial court and also in view of fact that application for amendment of written statement has been allowed, petition is disposed of in terms of the order of trial court granting liberty to petitioner/defendant-lessee to file appropriate application for framing of additional issues in light of amendment being allowed to written statement.
Dated : 01.11.2019 kvg/-